Forest Labs., LLC v. Feheley

296 So.3d 302

FOREST LABORATORIES, LLC

v.Kevin J. FEHELEY, Sr., as administrator and personal representative of the Estate of Sheila Clay Joubran, deceased, and as guardian and conservator of Kevin J. Feheley, Jr., an incapacitated person

1180387

Supreme Court of Alabama.

October 25, 2019

Thomas E. Walker of White Arnold & Dowd, P.C., Birmingham; and Linda E. Maichl, John R. Ipsaro, and Jeffrey F. Peck of Ulmer & Berne, LLC, Cincinnati, Ohio, for appellant.

Thomas J. Knight of Hubbard & Knight, Anniston; and George D. Robinson of Robinson Law Firm, LLC, Anniston, for appellee.

WISE, Justice.

Forest Laboratories, LLC ("Forest"), filed a permissive appeal pursuant to Rule 5, Ala. R. App. P., from the Calhoun Circuit Court's order denying Forest's motion for a summary judgment. We reverse and remand.

Facts and Procedural History

Lexapro is the brand name of a prescription drug used to treat depression. It appears that Forest manufactured and marketed Lexapro and that Forest Pharmaceuticals, Inc. ("FPI"), sold and distributed Lexapro. Escitalopram is the generic form of Lexapro.

On December 29, 2015, Elias Joubran's physician prescribed Lexapro for Elias's depression. Elias's prescription was filled with generic escitalopram that was manufactured and sold by a company other than Forest. On December 30, 2015, Elias entered the house belonging to him and his wife, Sheila Clay Joubran; he shot and killed Sheila and then shot and killed himself.¹

On July 13, 2017, Kevin J. Feheley, Sr., as administrator and personal representative of Sheila's estate and as guardian and conservator of Kevin J. Feheley, Jr., an incapacitated person,² filed suit in the Calhoun Circuit Court against Mary Joubran, in her capacity as the personal representative of Elias's estate, Forest, FPI, and fictitiously named defendants. The complaint alleged that, at the time of the murder/suicide, Elias "was under prescription for, and was ingesting, under certain physicians' prescription, certain pharmaceuticals, including those pharmaceuticals manufactured by the defendants as described more particularly herein." The complaint went on to allege that "Forest's Lexapro [ ] enhanced, enabled and aggravated [Elias's] depression and violent behaviors." The complaint alleged, in part:

"Defendants [FPI] and [Forest] (collectively hereinafter, ‘Forest’) were severally, the marketer, promoter, seller, manufacturer, distributor, and entity which did manufacture, create, design, test, label, package, distribute, market, sell, advertise, fail to warn, and otherwise handle and distribute in commerce, the products, Lexapro 10 mg tablets."

After including extensive allegations regarding Forest's marketing activities, Feheley alleged:

"32. The foregoing and similar activity has continued in an effort to induce physicians to prescribe Lexapro and to increase sales to persons such as [Elias Joubran] as a matter of specific intent by the Defendants. Defendants suppressed the true facts as to the dangers of Lexapro, while at the same time, communicating to physicians and to the body of physicians generally that Lexapro was safe and effective with the specific intent to enlarge and enhance the market for Lexapro and with the proximate result that the prescriptions of Lexapro were in fact greatly increased and enhanced, the drug much more generally accepted by the prescribing physician public, and that customers such as Elias Joubran would be prescribed Lexapro by physicians who were not aware of all of the true dangers of the drug including:

"a. That the drug was particularly dangerous for patients who were already experiencing unusual agitation and upset,

"b. That the drug was particularly dangerous during the time period shortly after its use was commenced by a patient, and shortly after the dose was increased, in either case, a greater risk for suicide and violence was and is enhanced by the drug,

"c. That the drug heightened the risk of increased agitation, suicidal behaviors, violent behaviors, and patients acting on thoughts that would otherwise be mediated or restrained by the patient, but in the presence of this drug would, instead, be acted upon. Defendants misrepresented that the increased risk of suicide was essentially, solely, a product of younger age when in fact [D]efendants knew or should have known that the risk was related to factors that occurred more commonly, but not at all uniquely, with younger age, and these factors existed in Elias Joubran and other vulnerable populations who were targeted consumers of the drugs, and,

"d. On information and belief, Plaintiff avers that neither Elias Joubran, nor his prescribing physician were aware of the extent and true nature of the facts which were misrepresented and or suppressed by Defendants and neither discovered the true facts at any time before the prescription and the acts described elsewhere in this Complaint, all with the proximate result and consequence that the killing of [Sheila Joubran] and the suicide of Elias Joubran took place as elsewhere described herein."

The complaint alleged that Forest

"was aware that when new doses are given or increased, there is an enhanced risk period for suicide or violence, but failed to warn adequately of this risk, and actively suppressed, concealed and misrepresented the extent of this enhanced danger."

It further alleged:

"42. The pharmaceutical product manufactured by [D]efendants and sold by them, being placed in the stream of commerce by them, were dangerous and defective in that each was unreasonably unsafe when put to the ordinary use and purpose for which it was sold and designed.

"43. The said drug was dangerous and defective in that it did not meet the reasonable expectations of the ordinary consumer as to safety, and that further it was not accompanied by the proper and necessary warnings that should have been provided with the said drugs to prevent harm and injury by consumers of the said drugs to persons like [Elias Joubran], all of which was reasonably foreseeable to the [D]efendants. Plaintiffs further allege and aver that [D]efendants were negligent and wanton in their design, manufacture, sale, advertising, failure to warn, and other dealing with, and handling of, the subject products, all of which combined and concurred to be a substantial proximate cause of the harm and injury suffered by [P]laintiffs as complained of herein.

"44. The [D]efendants, including named and fictitious defendants, were negligent, careless, wanton, and violated the Alabama Manufacturers Extended Liability Doctrine, and their conduct combined and concurred, with the conduct of Defendant's decedent, Elias Joubran, to proximately cause the injuries and damages and losses and the death suffered by the [P]laintiff's decedent, Sheila Clay Joubran, deceased, on December 30, 2015, as described herein.

"45. The conduct of the [D]efendants was gross, oppressive, burdensome, willful, intentional, wanton, and otherwise such as to justify the imposition of punitive damages under applicable law."

The complaint asserted various claims against Forest, including various products-liability claims, negligence and wantonness claims, breach-of-express- and implied-warranty claims, and a civil-conspiracy claim. Count II alleged a claim of "Product Liability (Failure to Warn)":

"57. Defendants are designers, developers, manufacturers, testers, marketers, distributors, promoters, and sellers of the pharmaceutical product Lexapro.

"58. The pharmaceutical product Lexapro, designed, developed, manufactured, tested, marketed, distributed, promoted, and sold by Defendants was and is unaccompanied by proper warnings regarding all possible adverse side effects associated with the use of pharmaceutical product Lexapro, and the comparative severity and duration of such adverse effects; the warnings given did not accurately reflect the symptoms, scope or severity of the side effects.

"59. Defendants failed to perform adequate research, investigation and testing, in that adequate testing, research and investigation would have shown that, used individually and/or in any combination thereof, [Lexapro ] possessed serious potential hazards with respect to which full and proper warnings accurately and fully reflecting hazards, symptoms, scope and severity should have been made, both with respect to the use of the pharmaceutical product Lexapro, individually and with respect to any combination use with any other pharmaceutical products.

"60. Defendants also failed to effectively warn users and physicians that numerous other suitable pharmaceutical products made by other manufacturers, did not have such severe side effects.

"61. The pharmaceutical product Lexapro, designed, developed, manufactured, tested, marketed, distributed, promoted, and sold by Defendants was defective due to inadequate post-marketing research and warning or instruction because, after the manufacturer, developer, designer, and marketer knew or should have known of the risk of injury from the pharmaceutical product Lexapro, it and they failed to provide adequate warnings to users or consumers of the product and continued to aggressively promote the product, and no accurate or appropriate warning was given to [Elias Joubran] or his physicians by Defendants Forest Pharmaceuticals, Inc., and Forest Laboratories, Inc., or the other defendants at the point and time of sale or by anyone else."

Count VII alleged claims of misrepresentation, fraud, suppression, and deceit:

"87. Forest^[3] and fictitious Defendants were aware that when new doses are given or increased, there is an enhanced risk period for suicide or violence, but fraudulently suppressed information about this risk. Defendants have made, and some of them continue to make, false and fraudulent misrepresentations to physicians and general public including, but not limited to, that the pharmaceutical product Lexapro, is safe, fit and effective for its uses and is not hazardous to the health of users.

"88.

...