The following lawsuit was filed by Elizabeth Conte in California. It alleges that Metoclopramide is a defective drug because it can cause a variety of movement disorders:
38. Metoclopramide was "defective" and "unreasonably dangerous" when the product
initially was patented, and subsequently when it was promoted and entered into the
stream of commerce and was received by Elizabeth Conte, in one or more of the
following respects:(a) At the time metoclopramide left the control of TEVA, PLIVA, PUREPAC, and DRUG
COMPANY DOES 1 THROUGH 6 it was defective and unreasonably dangerous due to a
failure to contain adequate warnings or instructions, or, in the alternative,
because it was designed in a defective manner, or, in the alternative, because the
product breached an express warranty or failed to conform to other expressed
factual representations upon which Elizabeth Conte's physicians justifiably
relied, or because it breached an implied warranty, all of which proximately
caused the damages for which Plaintiff seek recovery herein.(b) Metoclopramide was not reasonably safe as designed, taking into account the
foreseeable risks involved in its use at the time the product left the possession
of TEVA, PLIVA, PUREPAC, and DRUG COMPANY DOES 1 THROUGH 6 and that such risks
clearly outweighed the utility of the product or its therapeutic benefits.(c) Metoclopramide was not reasonably safe due to inadequate or defective warnings
or instructions that were known or reasonably scientifically knowable at the time
the product left the possession of the Drug Company Defendants. Specifically,
although TEVA, PLIVA, PUREPAC, and DRUG COMPANY DOES 1 THROUGH 6 were well aware
that metoclopramide could potentially cause central nervous system side effects,
depression with suicidal ideation, akathisia, akinesia, tardive dyskinesia,
tardive dystonia, visual disturbances and interference with the metabolism of
other prescription drugs and in fact, had significantly greater prevalence and
severity of these side effects in patients with diabetes mellitus, warnings of
such adverse health conditions were either not included on the package insert for
these products or they were not adequate to inform reasonably prudent physicians
and consumers.(d) The warnings or instructions of TEVA. PLIVA, PUREPAC, and DRUG COMPANY DOES 1
THROUGH 6 were not of a nature that a reasonable prudent drug company in the same
or similar circumstances would have provided with respect to the danger. There
were no warnings or instructions that communicated sufficient information on the
dangers and safe use of the product taking into account the characteristics of the
product, and/or the ordinary knowledge common to the physician who prescribes and
the consumer who purchases the product, such as the Plaintiff Elizabeth Conte.
Superior Court of California,
Unlimited Jurisdiction.
San Francisco County
Elizabeth Ann CONTE, Plaintiff,
v.
WYETH, INC. d/b/a Wyeth, Individually and as Successor-In-Interest to A.H. Robins,
Inc. and American Home Products Corporation; Schwarz Pharma, Inc.; Pliva, Inc.;
Purepac Pharmaceutical Co.; Teva Pharmaceuticals USA, Inc.; Drug Company Does 1
Through 6, Inclusive; and Robert J. Elsen, M.D., Defendants.
No. CGC-04-437382.
May 27, 2005.
Complaint for Damages Strict Products Liaility, Negligence, Negligence Per Se,
Breach of Implied Warranty, Breach of Express Warranty, Fraud, Negligent
Misrepresentation, Fraud By Concealment, Unfair Trade Practices, Punitive Damages
[C.C. ยงยง 1714(a), 3294])
Laurence O. Masson (SBN 87794), Law Office of Laurence O. Masson, One Maritime
Plaza, Suite 1040, San Francisco, California 94111, Telephone: 415-951-1942,
Facsimile: 415-951-1943, Counsel for Plaintiff Elizabeth Ann Conte.
PLAINTIFF alleges:
Complaint For Damages
PARTIES AND JURISDICTION
1. Plaintiff Elizabeth Conte is an individual and is, and at all times relevant to
this Complaint was, a resident of San Francisco County, California.
2. Defendant WYETH, INC. ("WYETH") is a Delaware corporation with its principal
place of business in New Jersey. WYETH is the successor in interest to A.H. Robins
Company, Inc., a Virginia corporation, which first obtained approval by the Food
and Drug Administration to distribute metoclopramide, under the brand name of
Reglan, in the United States. Until December 27, 2001, Wyeth manufactured and
distributed Reglan through its Wyeth-Ayerst Laboratories Division in St. Davids,
Pennsylvania. Metoclopramide is the active ingredient of Reglan. WYETH also
manufactures and distributes generic metoclopramide through its ownership of ESI
LEDERLE, INC. ("ESI"), which was formerly a subsidiary of WYETH and was merged
into WYETH on December 15, 1998. On December 27, 2001, WYETH sold the rights and
liabilities associated with Reglan tablets and Reglan syrup to Schwarz Pharma,
Inc., a Delaware corporation with its principal place of business in Wisconsin.
WYETH regularly transacts business in California. References in this Complaint to
WYETH include both WYETH individually and as successor in interest to A.H. ROBINS,
INC., AMERICAN HOME PRODUCTS CORPORATION, and ESI.
3. Plaintiff is informed and believes that at all times relevant to this lawsuit,
Defendant WYETH and/or one of its predecessors in interest and/or one of its
family of wholly owned divisions did business in the State of California by
selling Reglan brand metoclopramide and/or generic metoclopramide in the State of
California.
4. Schwarz Pharma, Inc. ("SCHWARZ") is a Delaware corporation with its principal
place of business in Mequon, Wisconsin. On December 27, 2001, SCHWARZ purchased
the rights and liabilities associated with Reglan tablets and Reglan syrup from
Wyeth pursuant to an Asset Purchase Agreement executed on that date which
obligated it to be responsible for claims relating to or arising out of the
ingestion or use of Reglan from and after March 31, 2002, subject to a right to
indemnification by Wyeth up to an amount not presently known by Plaintiff.
Plaintiff is informed and believes that at all times relevant to this lawsuit,
Defendant SCHWARZ and/or one of its predecessors in interest and/or one of its
family of wholly owned divisions did business in the State of California by
selling Reglan brand metoclopramide in the State of California.
5. Plaintiff is informed and believes that Defendant TEVA PHARMACEUTICALS USA,
INC. ("TEVA") is a Delaware corporation with its principal place of business in
the State of Pennsylvania, and is a wholly-owned subsidiary of TEVA Pharmaceutical
Industries, Ltd., an Israeli Corporation with its principal place of business in
Israel. Plaintiff is further informed and believes that TEVA, or a related entity
whose identity is presently unknown to Plaintiff, manufactured, distributed or
contracted for the manufacture and distribution of a generic form of
metoclopramide in the State of California that was identified with an NDC number
assigned to Teva Pharmaceuticals USA Inc. and that was ingested by Plaintiff
Elizabeth Conte.
6. Plaintiff is further informed and believes that TEVA is subject to suit in the
State of California, because at all times relevant to this Complaint, TEVA
regularly conducted business in this State, receiving substantial revenues in this
State, and manufactured and/or distributed products in this State which have
caused injury to Plaintiff.
7. Plaintiff is informed and believes that Defendant PLIVA, INC. ("PLIVA") is a
New Jersey Corporation with its principal place of business in East Hanover, New
Jersey, and is a wholly owned subsidiary of PLIVA D.D., a Croatian corporation
with its principal place of business in Zagreb, Croatia. Plaintiff is further
informed and believes that PLIVA, or a related entity whose identity is presently
unknown to Plaintiff, manufactured, distributed or contracted for the manufacture
and distribution of a generic form of metoclopramide in the State of California
that was identified with an NDC number assigned to Pliva, Inc. and that was
ingested by Plaintiff.
8. Plaintiff is further informed and believes that PLIVA is subject to suit in the
State of California, because at all times relevant to this Complaint, PLIVA
regularly conducted business in this State, receiving substantial revenues in this
State, and manufactured and/or distributed products in this State which have
caused injury to Plaintiff.
9. Plaintiff is informed and believes that Defendant PUREPAC PHARMACEUTICAL CO.
("PUREPAC") is a Delaware corporation with its principal place of business in
Cranford, New Jersey. Plaintiff is informed and believes that PUREPAC is a
subsidiary of ALPHARMA, Inc., a Delaware corporation with its principal place of
business in Fort Lee, New Jersey. Plaintiff is further informed and believes that
PUREPAC manufactured, distributed or contracted for the manufacture and
distribution of a generic form of metoclopramide in the State of California that
was identified with an NDC number assigned to Purepac Pharmaceutical Co. and that
was ingested by Plaintiff.
10. Plaintiff is further informed and believes that PUREPAC is subject to suit in
the State of California, because at all times relevant to this Complaint, PUREPAC
regularly conducted business in this State, receiving substantial revenues in this
State, and manufactured and/or distributed products in this State which have
caused injury to Plaintiff.
11. Plaintiff hereby incorporates by reference all above allegations as if fully
set forth herein. With respect to each of the above allegations that the above
entities manufactured, distributed or contracted for the manufacture and
distribution of a generic form of metoclopramide in the State of California,
Plaintiff is informed and believes that DRUG COMPANY DOES 1 THROUGH 6 also
manufactured, distributed or contracted for the manufacture and distribution of a
generic form of metoclopramide in the State of California that was ingested by
Plaintiff Elizabeth Conte. Plaintiff is further informed and believes that DRUG
COMPANY DOES 1 THROUGH 6 are subject to suit in the State of California, because
at all times relevant to this Complaint, they each regularly conducted business in
this State, receiving substantial revenues in this State, and manufactured and/or
distributed products in this State which have caused injury to Plaintiff Elizabeth
Conte.
12. Plaintiff does not know the true names of DRUG COMPANY DOES 1 THROUGH 6
inclusive, and therefore sue them by those fictitious names.
13. For purposes of this Complaint WYETH, TEVA, PLIVA, PUREPAC, and DRUG COMPANY
DOES 1 THROUGH 12 are sometimes referred to as the "Drug Company Defendants."
14. Upon information and belief, Defendant ROBERT J. ELSEN, M.D., ("DR. ELSEN") is
a citizen and resident of San Francisco County, California. At all times relevant
to this Complaint, DR. ELSEN was a citizen and resident of San Francisco County,
California. At all times relevant to this Complaint, Defendant DR. ELSEN was a
physician duly licensed to practice medicine under the laws of the State of
California, and did in fact practice medicine in San Francisco County, California.
Upon information and belief, Defendant DR. ELSEN limited his practice of medicine
as a physician to Internal Medicine and held himself out to be an expert and
specialist in the field of Internal Medicine, having the special knowledge and
skills possessed by practitioners of Internal Medicine with similar training and
experience situated in San Francisco County, California or similar communities
from at least on or about December 1999 to at least on or about April, 2004.
15. The amount in controversy exceeds the jurisdictional minimum of this Court,
and venue is proper in San Francisco County, California because the events giving
rise to this lawsuit occurred in that county.
FACTUAL BACKGROUND
16. From on or about August, 2000 until on or about April, 2004, Plaintiff
Elizabeth Conte took metoclopramide manufactured and distributed by DRUG COMPANY
DEFENDANTS for the treatment of esophageal reflux.
17. From on or about August, 2000 until on or about April, 2004, DR. ELSEN
prescribed metoclopramide to Plaintiff Elizabeth Conte for esophageal reflux.
18. Because of the misleading information that the DRUG COMPANY DEFENDANTS, and
each of them, provided to physicians and the FDA about the true risks associated
with the use of Reglan/metoclopramide and because of the failure of the DRUG
COMPANY DEFENDANTS, and each of them, to adequately inform physicians generally,
including Plaintiff's physicians, about the true risks associated with the use of
Reglan(R)/metoclopramide, at all times relevant to this lawsuit, while Plaintiff
Elizabeth Conte was taking metoclopramide, her physicians never informed her of
any side effects associated with metoclopramide or that metoclopramide was only
approved for short term use (up to 12 weeks).
19. Ms. Conte took metoclopramide as prescribed by DR. ELSEN throughout the period
from on or about August, 2000, until on or about April, 2004.
20. Starting in mid October 2003, Ms. Conte began to experience mild involuntary
mouth movements. Her condition got dramatically worse in April, 2004, when her
involuntary mouth and tongue movements became far more pronounced and when she
also began to experience involuntary movements of her toes. In April, 2004, Dr.
Gregory Pauxtis, a neurologist, determined that Ms. Conte's movement problems
appeared to be metoclopramide induced tardive dyskinesia resulting from long-term
metoclopramide use.
21. Tardive dyskinesia is a debilitating neurological disorder that often results
in involuntary and uncontrollable movements of the head, neck, face, arms, legs,
and trunk, in addition to grotesque facial grimacing and open-mouthed,
uncontrollable tongue movements, tongue thrusting, and tongue chewing. Tardive
dyskinesia is often permanent. There is no cure for tardive dyskinesia.
22. Use of metoclopramide caused Ms. Conte to suffer serious, permanent and
disabling injuries including but not limited to injuries of or associated with the
central nervous and extrapyramidal motor systems. Because of the injuries Ms.
Conte suffered from the use of metoclopramide, Ms. Conte has experienced and will
continue to experience medical and related expenses, loss of ability to provide
household services for herself, disfigurement, disability, pain and suffering,
psychological injury and other injuries and damages.
23. Reglan/metoclopramide is approved for short-term use up to twelve weeks in
adults.
24. At all times material hereto, Defendant WYETH, individually and as
successor-in-interest to A.H. Robins Company, was aware of the serious side
effects caused by Reglan/metoclopramide including, but not limited to, central
nervous system disorders, depression with suicidal ideation, akathisia, tardive
dyskinesia, tardive dystonia, visual disturbances and interference with drug
metabolism.
25. At all times material hereto, WYETH and the other DRUG COMPANY DEFENDANTS knew
or should have known that most physicians were not aware of or did not fully
appreciate the seriousness of the risks associated with use of Reglan
/metoclopramide and that consequently there was a widespread tendency for
physicians to prescribe Reglan/metoclopramide for inappropriate long-term use.
Therefore, WYETH and the other DRUG COMPANY DEFENDANTS also knew or should have
known that the package insert and the Physician Desk Reference monograph for
Reglan/metoclopramide did not adequately inform physicians about the risks
associated with Reglan/metoclopramide, particularly for patients whose bodies do
not metabolize metoclopramide effectively.
26. WYETH also had access to knowledge concerning the side effects of Reglan
/metoclopramide, the manner in which physicians were prescribing Reglan
/metoclopramide and the fact that physicians did not fully understand the risks
associated with Reglan/metoclopramide through its participation in or its ability
to review data from clinical studies that were not publicly available, through its
review of domestic and international medical literature concerning Reglan
/metoclopramide and through ongoing litigation. Yet, WYETH failed to adequately
warn physicians about the risks associated with Reglan/metoclopramide, despite the
fact that WYETH knew that physicians and the generic pharmaceutical industry
relied on WYETH to disclose what it knew and what it should have known from a
prudent review of the information that it possessed or to which it had access.
27. Defendant WYETH's predecessor in interest, A.H. Robins Company, Inc.,
expressly warranted to some physicians that Reglan/metoclopramide is safe in
long-term use. When A.H. Robins made those representations, Robins knew that those
physicians would share that information with other physicians in their community
and that eventually many physicians would come to rely on Robins' express
warranties about Reglan/metoclopramide's safety in long-term use. Robins' express
warranties about the safety of Reglan(R)/metoclopramide in long-term use were
false.
28. Defendant WYETH knew, or should have known through the exercise of reasonable
care, that the package insert for Reglan/metoclopramide substantially understated
the prevalence of acute and long-term side effects of Reglan/metoclopramide. WYETH
failed to use reasonable care to modify the package insert to adequately warn
physicians about the true risks of both short-term use and long-term use, even
after several injured patients filed lawsuits alleging inadequate warnings and
produced competent expert testimony supporting their allegations.
29. Defendant WYETH and its predecessors in interest had actual knowledge, through
their own studies and studies by independent investigators, that doctors
frequently prescribed Reglan/metoclopramide for long-term use that was not safe
for patients. Defendant WYETH and its predecessors in interest had actual
knowledge, through their own studies and studies by independent investigators,
that nearly one-third of all patients who used Reglan/metoclopramide received it
on doctor's prescriptions for 12 months or longer, rather than 12 weeks or less.
Defendant WYETH also had actual knowledge, through research by independent
investigators, that the risk of tardive dyskinesia and other extrapyramidal side
effects of Reglan/metoclopramide in patients who receive the drug for weeks or
longer is approximately 100 times greater than disclosed in WYETH's package insert
for Reglan and the Physician's Desk Reference monograph for Reglan brand
metoclopramide. Defendant WYETH also knew, or through the exercise of reasonable
care should have known, that many patients who use Reglan/metoclopramide are not
able to effectively metabolize Reglan/metoclopramide and that as a foreseeable
consequence of their inability to effectively metabolize Reglan/metoclopramide,
those patients have a greater risk of developing serious and permanent injuries.
Defendant WYETH failed to disclose this information to the medical community and
failed to adequately disclose this information to the generic pharmaceutical
industry. Defendant WYETH was aware that its failure to disclose this information
to the medical community and its failure to disclose it to the generic
pharmaceutical industry would probably result in serious injury to patients who
were prescribed Reglan/metoclopramide by a physician who was not aware of this
information. By failing to disclose this information to the medical community and
the generic pharmaceutical industry, Defendant WYETH acted in willful and wanton
disregard of the rights of persons in the Plaintiff Elizabeth Conte's class, and
this conduct caused serious injury to the Plaintiffs.
30. On or about December 27, 2001, Defendant SCHWARZ became entitled to access to
all of the information and knowledge then possessed by Defendant WYETH concerning
Reglan/metoclopramide, as more particularly alleged above. Despite this knowledge,
assuming it was transmitted to SCHWARZ by WYETH as contemplated in the Asset
Purchase Agreement, SCHWARZ failed to disclose this information to the medical
community and the generic pharmaceutical industry and thereby acted in willful and
wanton disregard of the rights of persons in Plaintiff Elizabeth Conte's class,
and this conduct caused serious injury to the Plaintiffs.
31. Defendants TEVA, PLIVA, PUREPAC, and DRUG COMPANY DOES 1 THROUGH 6 chose to
rely on Defendant WYETH, and its predecessors in interest, to keep abreast of
current medical literature concerning Reglan/metoclopramide and to inform them
concerning its knowledge of how physicians were using Reglan/metoclopramide and
any dangers that were associated with that use, by properly reporting their
knowledge to the FDA, despite the fact that TEVA, PLIVA, PUREPAC, and DRUG COMPANY
DOES 1 THROUGH 6 knew, or should have known, that WYETH and its predecessors in
interest had a history of failing to adequately warn physicians about other
dangerous products. Defendants TEVA, PLIVA, PUREPAC, and DRUG COMPANY DOES 1
THROUGH 6 failed to exercise reasonable care to independently monitor their sales
of metoclopramide and the medical literature, which would have alerted them to the
fact that Reglan/metoclopramide was widely over prescribed as a result of
inadequate warnings in the package inserts and PDR monographs for Reglan brand and
generic metoclopramide. Defendants TEVA, PLIVA, PUREPAC, and DRUG COMPANY DOES 1
THROUGH 6 also knew, or should have known in the exercise of reasonable care, that
the package insert for Reglan/metoclopramide substantially understated the
prevalence of acute dystonic reactions and other acute side effects of Reglan
/metoclopramide, and failed to use reasonable care to modify the package insert,
and/or seek FDA approval to modify the package insert, in order to adequately warn
physicians and consumers.
32. As a result of the misrepresentations, breach of express and implied
warranties and negligence occasioned by the DRUG COMPANY DEFENDANTS, Ms. Conte was
prescribed excessive amounts of metoclopramide which caused her to suffer serious
and permanent injuries as described above.
33. Notwithstanding the failure of the DRUG COMPANY DEFENDANTS to provide adequate
warnings, DR. ELSEN was negligent in his prescription of metoclopramide and his
negligence injured Plaintiff.
34. All Defendants are jointly and severally liable to Plaintiffs for all damages
claimed.
FIRST CAUSE OF ACTION
Strict Products Liability
(As against TEVA, PLIVA, PUREPAC, and DRUG COMPANY DOES 1 THROUGH 6)
35. Plaintiff hereby incorporates by reference all above allegations as if fully
set forth herein.
36. At all relevant times TEVA, PLIVA, PUREPAC. and DRUG COMPANY DOES 1 THROUGH 6
were engaged in the business of manufacturing, designing, testing, marketing,
promoting, distributing, and/or selling metoclopramide.
37. At all times mentioned in this Complaint, metoclopramide was defective and/or
unreasonably dangerous to Elizabeth Conte and other foreseeable users at the time
it left the control of TEVA, PLIVA, PUREPAC, and DRUG COMPANY DOES 1
38. Metoelopramide was "defective" and "unreasonably dangerous" when the product
initially was patented, and subsequently when it was promoted and entered into the
stream of commerce and was received by Elizabeth Conte, in one or more of the
following respects:
(a) At the time metoclopramide left the control of TEVA, PLIVA, PUREPAC, and DRUG
COMPANY DOES 1 THROUGH 6 it was defective and unreasonably dangerous due to a
failure to contain adequate warnings or instructions, or, in the alternative,
because it was designed in a defective manner, or, in the alternative, because the
product breached an express warranty or failed to conform to other expressed
factual representations upon which Elizabeth Conte's physicians justifiably
relied, or because it breached an implied warranty, all of which proximately
caused the damages for which Plaintiff seek recovery herein.
(b) Metoclopramide was not reasonably safe as designed, taking into account the
foreseeable risks involved in its use at the time the product left the possession
of TEVA, PLIVA, PUREPAC, and DRUG COMPANY DOES 1 THROUGH 6 and that such risks
clearly outweighed the utility of the product or its therapeutic benefits.
(c) Metoclopramide was not reasonably safe due to inadequate or defective warnings
or instructions that were known or reasonably scientifically knowable at the time
the product left the possession of the Drug Company Defendants. Specifically,
although TEVA, PLIVA, PUREPAC, and DRUG COMPANY DOES 1 THROUGH 6 were well aware
that metoclopramide could potentially cause central nervous system side effects,
depression with suicidal ideation, akathisia, akinesia, tardive dyskinesia,
tardive dystonia, visual disturbances and interference with the metabolism of
other prescription drugs and in fact, had significantly greater prevalence and
severity of these side effects in patients with diabetes mellitus, warnings of
such adverse health conditions were either not included on the package insert for
these products or they were not adequate to inform reasonably prudent physicians
and consumers.
(d) The warnings or instructions of TEVA. PLIVA, PUREPAC, and DRUG COMPANY DOES 1
THROUGH 6 were not of a nature that a reasonable prudent drug company in the same
or similar circumstances would have provided with respect to the danger. There
were no warnings or instructions that communicated sufficient information on the
dangers and safe use of the product taking into account the characteristics of the
product, and/or the ordinary knowledge common to the physician who prescribes and
the consumer who purchases the product, such as the Plaintiff Elizabeth Conte.
(e) The metoclopramide manufactured and supplied by TEVA, PLIVA, PUREPAC, and DRUG
COMPANY DOES 1 THROUGH 6 was further defective due to inadequate post-marketing
warning or instruction because, after TEVA, PLIVA, PUREPAC, and DRUG COMPANY DOES
1 THROUGH 6 knew or should have known of the risks of injury from metoclopramide
associated with long-term use as commonly prescribed, they failed to promptly
respond to and adequately warn about extrapyramidal side effects, among other
adverse reactions.
39. TEVA, PLIVA, PUREPAC, and DRUG COMPANY DOES 1 THROUGH 6 knew or in light of
reasonably available scientific knowledge should have known about the danger that
caused the injuries for which Plaintiff seeks recovery. A reasonably competent
physician who prescribed Reglan/metoclopramide and a reasonably competent
plaintiff who consumed metoclopramide would not realize its dangerous condition.
40. TEVA, PLIVA, PUREPAC, and DRUG COMPANY DOES 1 THROUGH 6 knew or in light of
reasonably available scientific knowledge should have known about the danger
associated with use of metoclopramide that caused the damages for which Plaintiff
seeks recovery.
41. The reasonably foreseeable use of metoclopramide, that is ingestion as
treatment for gastroesophageal reflux on a long term basis, involved substantial
dangers not readily recognizable by the ordinary physician who prescribed Reglan
/metoclopramide or the patient, like Plaintiff Elizabeth Conte, who consumed
metoclopramide. product was used in its intended and foreseeable manner, and in
the manner recommended by TEVA, PLIVA, PUREPAC, and DRUG COMPANY DOES 1 THROUGH 6
or in a non-intended manner that was reasonably foreseeable.
SECOND CAUSE OF ACTION
Negligence
(As against TEVA, PLIVA, PUREPAC, and DRUG COMPANY DOES 1 THROUGH 6)
45. Plaintiff hereby incorporates by reference all above allegations as if fully
set forth herein.
46. At all times mentioned in this Complaint, TEVA, PLIVA, PUREPAC, and DRUG
COMPANY DOES 1 THROUGH 6 had a duty to properly manufacture, compound, test,
inspect, package, label, distribute, market, examine, maintain, supply, provide
proper warnings, and prepare for use and sell metoclopramide.
47. TEVA, PLIVA, PUREPAC, and DRUG COMPANY DOES 1 THROUGH 6 knew or should have
known that use of metoclopramide created an unreasonable risk as a result of its
design, testing, and/or manufacturing, including an unreasonable risk of central
nervous system side effects, depression, akathisia, akinesia, tardive dyskinesia,
tardive dystonia, visual disturbances and/or interference with drug metabolism,
especially in female patients diagnosed with diabetes mellitus and more
particularly in patients who are poor metabolizers of metoclopramide.
48. TEVA, PLIVA, PUREPAC, and DRUG COMPANY DOES 1 THROUGH 6 were negligent, and
breached duties owed to Plaintiff Elizabeth Conte with respect metoclopramide in
one or more of the following respects:
(a) Despite knowledge of hazards and knowledge that the product was frequently
prescribed for long-term use, they failed to accompany the product with adequate
warnings and instructions regarding the adverse and long-lasting side effects
associated with the use of metoclopramide and particularly with foreseeable
long-term use;
(b) They failed to conduct adequate testing;
(c) Despite knowledge of hazards, they failed to conduct adequate post-marketing
surveillance to determine the safety of the product;
(d) Despite knowledge of hazards, they failed to adequately warn Plaintiff
Elizabeth Conte's physicians or Plaintiff Elizabeth Conte that the use of
metoclopramide could result in depression with suicidal ideation, akathisia,
akinesia, tardive dyskinesia, tardive dystonia, visual disturbances and
interference with drug metabolism; and
(e) Despite the fact that they knew or should have known that metoclopramide
caused unreasonably dangerous side effects, they failed to adequately disclose the
known or knowable risks associated with Reglan(R)/metoclopramide as set forth
above; they willfully and deliberately failed to adequately disclose these risks,
and in doing so, acted with a conscious disregard of Plaintiff Elizabeth Conte's
safety or welfare.
49. As a result of the negligence of TEVA, PLIVA, PUREPAC, and DRUG COMPANY DOES 1
THROUGH 6 and their willful and wanton misconduct, Reglan/metoclopramide was
prescribed to Plaintiff Elizabeth Conte for long-term use and was used long-term
by her, thereby causing her to sustain reasonably foreseeable serious and
permanent damages and injuries as alleged in this Complaint.
50. The negligence and the willful and wanton misconduct of TEVA, PLIVA, PUREPAC,
and DRUG COMPANY DOES 1 THROUGH 6 was a proximate cause of Plaintiff Elizabeth
Conte's harm and injuries that Plaintiff Elizabeth Conte has suffered and will
continue to suffer as previously described.
THIRD CAUSE OF ACTION
Negligence Per Se
(As against TEVA, PLIVA, PUREPAC, and DRUG COMPANY DOES 1 THROUGH
51. Plaintiff hereby incorporates by reference all above allegations as if fully
set forth herein.
52. The product label and package insert for metoclopramide is misbranded within
the meaning of 21 U.S.C. s 352(a) and (f) and California Health and Safety Codes
ss 111330 - 111510, because it was false and misleading and failed to give
adequate warnings and directions for use by physicians who prescribe Reglan
/metoclopramide. Because TEVA, PLIVA, PUREPAC, and DRUG COMPANY DOES 1 THROUGH 6,
and each of them, had a statutory duty under 21 U.S.C. s 352(a) and (f), and
California Health and Safety Codes ss 111330 - 111510, not to misbrand
metoclopramide and because each of them violated this duty, they were guilty of
negligence per se. In addition, and more particularly, because TEVA, PLIVA.
PUREPAC, and DRUG COMPANY DOES 1 THROUGH 6 knew, or should have known, that
physicians commonly prescribed Reglan/metoclopramide for long-term use, beyond the
12 week intended use that was approved by the FDA, pursuant to 21 CFR 201.128,
long-term use became an "intended use" which required the defendants, and each of
them, to provide adequate labeling for such a drug which accords with such other
uses to which the article was commonly prescribed. Their failure to adequately
warn about the magnitude of the risk associated with long-term use constitutes
negligence per se. This negligence per se proximately caused injury to the
Plaintiff Elizabeth Conte as described more fully herein.
FOURTH CAUSE OF ACTION
Fraud
(As against Defendant WYETH)
53. Plaintiff hereby incorporates by reference all above allegations as if fully
set forth herein.
54. As set forth above, WYETH and its predecessors falsely and fraudulently
represented to Plaintiff Elizabeth Conte's physicians, and through them to
Plaintiff Elizabeth Conte and members of the general public, that Reglan
/metoclopramide was safe for use to treat gastritis/gastroesophageal reflux and
that central nervous system side effects and extrapyramidal symptoms were
comparatively rare. These representations were, in fact, false. The true facts
were that Reglan/ metoclopramide was not safe for that purpose and was, in fact,
dangerous to the health and body of Plaintiff Elizabeth Conte.
55. WYETH and its predecessors made other representations about the safety and
efficacy of Reglan/metoclopramide, and its minimal side effects, all as set forth
above and incorporated here by reference.
56. These representations were, in fact, false. The true facts were that Reglan
/metoclopramide causes central nervous system side effects, and extrapyramidal
symptoms, among other side effects, far more frequently than represented, and
WYETH and its predecessors did not disclose or warn physicians about the actual
prevalence of known side effects of Reglan/metoclopramide, particularly when
Reglan/metoclopramide is used on a long-term basis or when used in patients who
are poor metabolizers of metoclopramide, all of which were foreseeable. WYETH and
its predecessors misrepresented the safety of Reglan/metoclopramide and withheld
warnings of the known side effects of Reglan/metoclopramide when used as commonly
prescribed by physicians, as specifically required by 21 CFR 201.128.
57. When WYETH and its predecessors made these representations, they knew that
they were false. WYETH made these representations with the intent to defraud and
deceive Plaintiff Elizabeth Conte's physicians and through them to defraud and
deceive Plaintiff Elizabeth Conte, and with the intent to induce her and her
physicians to act in the manner alleged in this Complaint, that is, to use Reglan
/metoclopramide as pharmaceutical treatment for gastroesophageal reflux for a
period of time that far exceeded the FDA's approved indicated duration of use.
58. At the time WYETH and its predecessors made the above-described
representations, and at the time Plaintiff Elizabeth Conte and her physicians took
the actions alleged in this Complaint, Plaintiff Elizabeth Conte and her
physicians were ignorant of the falsity of the representations and reasonably
believed them to be true. In reliance upon the representations, Plaintiff
Elizabeth Conte's physicians were induced to, and did, prescribe Reglan
/metoclopramide as described in this Complaint and Plaintiff Elizabeth Conte did
use Reglan/metoclopramide as described in this Complaint.
59. If Plaintiff Elizabeth Conte's physicians had known the actual facts, they
would not have prescribed Reglan/metoclopramide in the manner that they prescribed
it and Plaintiff Elizabeth Conte would not have taken metoclopramide in the way
that it was prescribed.
60. The reliance of Plaintiff Elizabeth Conte and her physicians upon the
representations of WYETH and its predecessors was justified because the
representations were made by individuals and entities that appeared to be in the
position to know the true facts.
61. As a proximate result of the fraud and deceit of WYETH and its predecessors,
Plaintiff Elizabeth Conte sustained the injuries and damages described in this
Complaint.
62. In doing the acts alleged in this Complaint, Wyeth and its predecessors acted
with oppression, fraud, and malice and Plaintiffs are therefore entitled to
punitive damages to deter WYETH and others from engaging in similar conduct in the
future. This wrongful conduct was done with the advance knowledge, authorization,
or ratification of an officer, director, or managing agent of each of WYETH and
its predecessors.
FIFTH CAUSE OF ACTION
Negligent Misrepresentation
(As against Defendant WYETH and SCHWARZ)
63. Plaintiff hereby incorporates by reference all above allegations as if fully
set forth herein.
64. WYETH and SCHWARZ had actual knowledge of facts which demonstrated that
representations in the Reglan package insert, the PDR monograph for Reglan and
literature that they distributed concerning Reglan/metoclopramide to physicians
were false and misleading. WYETH and SCHWARZ had an absolute duty to disclose the
true facts regarding the safety of Reglan to physicians, pharmacists, the generic
metoclopramide industry, which they negligently failed to do. Furthermore, WYETH
and SCHWARZ had a duty to ensure that they had a reasonable basis for making the
representations described above.
65. WYETH and SCHWARZ expressly and/or impliedly represented to Plaintiff
Elizabeth Conte, her physicians, pharmacists, the generic metoclopramide industry
and members of the general public that Reglan/metoclopramide was safe for use to
treat nausea and/or esophageal reflux for durations of use that exceeded the 12
week duration indicated in WYETH and SCHWARZ'S package inserts and in the PDR. The
representations by WYETH and SCHWARZ, and the lack of them were, in fact, false.
The true facts were that Reglan/metoclopramide was not safe for use in the manner
in which it was prescribed and was, in fact, dangerous to the health and body of
Plaintiff Elizabeth Conte.
66. WYETH and SCHWARZ made the above-described representations with no reasonable
grounds for believing them to be true. WYETH and SCHWARZ did not have accurate or
sufficient information concerning these representations. Further, WYETH and
SCHWARZ were aware that without such information, they could not accurately make
the above-described representations.
67. The above misrepresentations or omissions were made to Plaintiff Elizabeth
Conte, her physicians, pharmacists, the generic pharmaceutical industry and the
general public, all of whom justifiably relied on those representations or
omissions. WYETH and SCHWARZ'S misrepresentations or omissions were a proximate
cause of Plaintiffs' damages.
SIXTH CAUSE OF ACTION
Fraud by Concealment
(As against Defendant WYETH)
68. Plaintiff hereby incorporates by reference all above allegations as if fully
set forth herein.
69. At all times mentioned in this Complaint, WYETH and its predecessors had the
duty and obligation to disclose to Plaintiff Elizabeth Conte and to her
physicians, the true facts concerning Reglan/metoclopramide, that is, that Reglan
/metoclopramide was dangerous and defective, and how likely it was to cause
serious consequences to users, including injuries as described in this Complaint,
and the true level of risk involved in prescribing Reglan/metoclopramide for the
purposes indicated. WYETH and its predecessors made the affirmative
representations set forth above to Plaintiff Elizabeth Conte, her prescribing
physicians, and the general public prior to the day Plaintiff Elizabeth Conte was
first prescribed and used Reglan/metoclopramide, while concealing the material
facts set forth below.
70. At all times mentioned in this Complaint, WYETH and its predecessors had the
duty and obligation to disclose to Plaintiff Elizabeth Conte and to her physicians
the true facts concerning Reglan/metoclopramide, that is, that long term use and
exposure could cause central nervous system side effects, depression with suicidal
ideation, akathisia, akinesia, tardive dyskinesia and tardive dystonia. At all
times mentioned in this Complaint, WYETH and its predecessors intentionally,
willfully, and maliciously concealed or suppressed the facts set forth above from
Plaintiff Elizabeth Conte's physicians, and therefore from Plaintiff Elizabeth
Conte, with the intent to defraud as alleged in this Complaint.
71. At all times mentioned in this Complaint, neither Plaintiff Elizabeth Conte
nor her physicians were aware of the facts set forth above. Had they been aware of
those facts, they would not have acted as they did, that is, would not have
utilized Reglan/metoclopramide in the treatment of Plaintiff Elizabeth Conte's
gastroesophageal reflux for periods of time that exceeded 12 weeks duration.
72. As a proximate result of the concealment or suppression of the facts set forth
above, Plaintiff Elizabeth Conte was prescribed and took Reglan/metoclopramide and
subsequently became ill, thereby sustaining the injuries and damages as set forth
in this Complaint.
73. In doing the acts alleged in this Complaint, WYETH and its predecessors acted
with oppression, fraud, and malice, and Plaintiffs are therefore entitled to
punitive damages in an amount reasonably related to Plaintiffs' actual damages and
to WYETH's wealth, and sufficiently large to be an example to others, and to deter
WYETH and others from engaging in similar conduct in the future.
SEVENTH CAUSE OF ACTION
Breach of Express Warranties
(As against TEVA, PLIVA, PUREPAC, and DRUG COMPANY DOES 1 THROUGH 6)
74. Plaintiff hereby incorporates by reference all above allegations as if fully
set forth herein.
75. TEVA, PLIVA, PUREPAC, and DRUG COMPANY DOES 1 THROUGH 6 represented to the
medical community that the most common extrapyramidal side effect of Reglan(R)/
metoclopramide, acute dystonic reactions, only occurred in one in every 500
patients, despite the fact that from no later than June 1993 TEVA, PLIVA, PUREPAC,
and DRUG COMPANY DOES 1 THROUGH 6 knew, or should have known, that published
studies had established that the risk was 100 times greater than disclosed in the
package inserts and the PDR monograph for Reglan brand and generic metoclopramide.
Reglan/metoclopramide is not safe for long-term use and the risk of dystonic
reactions, including tardive dyskinesia from long-term use is much greater than
warranted.
76. The above-described manufacturing, compounding, packaging, designing,
distributing, testing, constructing, fabricating, analyzing, recommending,
merchandizing, advertising, promoting, supplying, and selling of metoclopramide
was expressly warranted by TEVA, PLIVA, PUREPAC, and DRUG COMPANY DOES 1 THROUGH 6
to be safe and fit for use by Plaintiff Elizabeth Conte and other members of the
general public.
77. At the time of the making of the express warranties, TEVA, PLIVA, PUREPAC, and
DRUG COMPANY DOES 1 THROUGH 6 had knowledge of the purpose for which
metoclopramide was to be used and warranted it to be, in all respects, fit, safe,
and effective and proper for such purpose. Metoclopramide was not properly
prepared nor accompanied by adequate warnings for its dangerous propensities that
were either known or reasonably scientifically knowable at the time of
distribution.
78. Plaintiff Elizabeth Conte and her physicians reasonably relied upon the skill
and judgment of TEVA, PLIVA, PUREPAC, and DRUG COMPANY DOES 1 THROUGH and upon the
above-described express warranties in using metoclopramide. The warranties and
representations were untrue in that metoclopramide was far more likely to cause
injury than represented by TEVA, PLIVA, PUREPAC, and DRUG COMPANY DOES 1 THROUGH
6, it caused severe injury to Plaintiff Elizabeth Conte and was unsafe and,
therefore, unsuited and unfit for the use for which it was intended. The breach of
the express warranties made by TEVA, PLIVA, PUREPAC, and DRUG COMPANY DOES 1
THROUGH 6 about metoclopramide could and did thereby proximately cause Plaintiff
Elizabeth Conte to sustain damages and injuries as alleged in this Complaint.
79. As soon as the true nature of metoclopramide and the fact that the warranties
and representations were false, were ascertained by Plaintiff Elizabeth Conte,
TEVA, PLIVA, PUREPAC, and DRUG COMPANY DOES 1 THROUGH 6 were notified of the
breach of their express warranties.
EIGHTH CAUSE OF ACTION
Breach of Implied Warranties
(As against TEVA, PLIVA, PUREPAC, and DRUG COMPANY DOES 1 THROUGH 6)
80. Plaintiff hereby incorporates by reference all above allegations as if fully
set forth herein.
81. TEVA, PLIVA, PUREPAC, and DRUG COMPANY DOES 1 THROUGH 6 knew that most
physicians who prescribed Reglan/metoclopramide were not aware the drug is a
dopamine antagonist and/or a neuroleptic agent, which is just as likely to cause
serious extrapyramidal side effects as other dopamine antagonists and/or other
neuroleptic drugs. TEVA, PLIVA, PUREPAC, and DRUG COMPANY DOES 1 THROUGH 6 also
knew that the risks of potentially irreversible neurological side effects when
metoclopramide is used long-term were much greater than most physicians realized.
By failing to give adequate warnings about the dopamine antagonist and/or
neuroleptic properties of metoclopramide and the risk of long-term use that is
associated with those properties, TEVA, PLIVA, PUREPAC, and DRUG COMPANY DOES 1
THROUGH 6, and each of them, breached implied warranties of merchantability and
fitness for the ordinary use of metoclopramide.
82. At all times mentioned in this Complaint, TEVA, PLIVA, PUREPAC, and DRUG
COMPANY DOES 1 THROUGH 6 manufactured, compounded, packaged, distributed,
recommended, merchandised, advertised, promoted, supplied, and sold
metoclopramide, and prior to the time it was used by Plaintiff Elizabeth Conte,
TEVA, PLIVA, PUREPAC, and DRUG COMPANY DOES 1 THROUGH 6 impliedly warranted to
Plaintiff Elizabeth Conte and to her physicians that the product was of
merchantable quality and safe and fit for the use for which it was intended.
83. Plaintiff Elizabeth Conte relied on the skill and judgment of TEVA, PLIVA,
PUREPAC, and DRUG COMPANY DOES 1 THROUGH 6 in using metoclopramide.
84. Metoclopramide was unsafe and unfit for its intended use, nor was it of
merchantable quality, as warranted by TEVA, PLIVA, PUREPAC, and DRUG COMPANY DOES
1 THROUGH 6 in that it had very dangerous propensities when put to its intended
use and would cause severe injury to the user. Metoclopramide was not properly
prepared nor accompanied by adequate warnings of its dangerous propensities that
were either known or reasonably scientifically knowable at the time of
distribution. Metoclopramide proximately caused Plaintiff Elizabeth Conte to
sustain damages and injuries as alleged in this Complaint by virtue of causing
Plaintiff Elizabeth Conte's illness.
85. After Plaintiff Elizabeth Conte was made aware of her injuries as a result of
Reglan(R)/metoclopramide, notice was duly given to TEVA, PLIVA, PUREPAC, and DRUG
COMPANY DOES 1 THROUGH 6 of the breach of the above-described warranties.
NINTH CAUSE OF ACTION
Consumer Protection (As against Defendant Wyeth)
86. Plaintiff hereby incorporates by reference all above allegations as if fully
set forth herein.
87. By reason of their conduct as alleged herein, WYETH and its predecessors
violated the provisions of the California Business and Professions Code, Division
7, Part 2, Preservation and Regulation of Competition, by inducing the Plaintiff
and Plaintiff's physicians to use and/or prescribe the drugs Reglan/metoclopramide
through the use of false and/or misleading advertising, representations and
statements.
88. By engaging in the conduct described above, WYETH and its predecessors
violated the California Business and Professions Code, Division 7, Part 2,
Preservation and Regulation of Competition by, among other things:
(a) Engaging in unfair trade practices as defined in this statute by making false
and misleading oral and written statements that had the capacity, tendency or
effect of deceiving or misleading consumers;
(b) Engaging in unfair trade practices as defined in this statute by making
representations that their products had an approval, characteristic, ingredient,
use or benefit which they did not have, including but not limited to statements
concerning the health consequences of the use of these drugs;
(c) Engaging in unfair trade practices as defined in this statute by failing to
state material facts, the omission of which deceived or tended to deceive,
including but not limited to, facts relating to the health consequences of the use
of these drugs; and
(d) Engaging in unfair trade practices as defined in this statute through
deception, fraud, misrepresentation, and knowing concealment, suppression and
omission of material facts with the intent that consumers rely upon the same in
connection with the use and continued use of the drugs.
89. The violations of the California Business and Professions Code, Division 7,
Part 2, Preservation and Regulation of Competition by WYETH and its predecessors
proximately caused injury to Plaintiff.
90. As a result of the aforesaid statutory violations, Plaintiff is entitled to
relief, as allowed by statute and prayed for below.
TENTH CAUSE OF ACTION
Punitive Damages
(As against Defendant WYETH)
91. Plaintiff hereby incorporates by reference all above allegations as if fully
set forth herein.
92. Defendant WYETH (including A.H. Robins Company, Inc., prior to its merger into
WYETH, and as WYETH thereafter) and its predecessors have marketed Reglan
/metoclopramide to physicians in a manner calculated to increase sales of the drug
and resultant profits to the drug company, and in conscious disregard of the risk
of injurious consequences to patients, through the medium of over-prescription of
the drug for patients at excessive dosage and/or for excessive periods of time
and/or for patients for whom safer effective alternative treatments existed,
thereby causing the consequent development of tardive dyskinesia and other
extrapyramidal symptoms ("EPS") among numerous patients, of whom the Plaintiff
Elizabeth Conte is one.
93. WYETH and its predecessors knew that the conditions for which Reglan
/metoclopramide was prescribed, in particular diabetic gastroparesis and
gastroesophageal reflux, are chronic conditions which indicate, for their
treatment, long-term therapy. Despite this knowledge, Defendant WYETH consciously
chose to evaluate the safety and efficacy of the drug through scientific
investigation for periods not exceeding weeks.
94. WYETH and its predecessors knew that Reglan/metoclopramide, as a dopamine
antagonist and/or a neuroleptic drug, is as likely as other dopamine antagonists
and/or other neuroleptic drugs to cause tardive dyskinesia and other EPS,
particularly at higher exposures and longer durations of use. Despite this
knowledge, WYETH consciously sponsored the performance and dissemination of
non-scientific investigations to suggest that metoclopramide is safe for long-term
use, proposed and distributed labeling suggesting that EPS side effects are rare
with Reglan/metoclopramide use, whether short-term or long-term, and otherwise
systematically suppressed or undercut the dissemination of specific scientific
information about the risks and prevalence of side effects associated with Reglan
/metoclopramide to physicians, to the generic metoclopramide industry and to the
FDA, which information was required to be submitted to the FDA under its
regulations, which information was and is material and relevant to Plaintiff
Elizabeth Conte's harm.
95. WYETH and its predecessors knew from its own investigations, including
analysis of sales statistics, and from scientific studies published in
peer-reviewed medical journals, that many physicians were unaware of the extent of
the risks posed by Reglan(R)/metoclopramide therapy at high dosages and/or
long-term exposure, that many physicians were over-prescribing Reglan
/metoclopramide, and that many patients, as a result, developed serious EPS side
effects, including depression with suicidal ideation, akathisia, akinesia, tardive
dyskinesia and tardive dystonia, who would not have developed these side effects
but for their overexposure to Reglan/metoclopramide. Despite this knowledge, WYETH
and its predecessors consciously failed to make or propose any changes in the
Reglan/metoclopramide labeling and consciously declined to disseminate information
to physicians, to the generic metoclopramide industry or to the FDA that would
alert them to the fact or risk of high dose and/or long term Reglan/metoclopramide
exposure.
96. Reglan/metoclopramide is not generally recognized as safe and effective at
high dosages and/or long term exposure under conditions established by the FDA and
applicable regulations, including packaging and labeling regulations.
97. Plaintiff specifically references and incorporates herein the allegations
contained in the facts common to all counts and in the fraud and misrepresentation
counts. The conduct of WYETH and its predecessors undertaken with this knowledge,
for these purposes, evinces a willful, wanton, and conscious disregard for the
rights and safety of patients, including the Plaintiff Elizabeth Conte. Plaintiff
suffered injury from WYETH's and its predecessors' disregard for their rights and
safety and therefore they are entitled to an award of punitive damages from WYETH.
98. WYETH knowingly withheld or misrepresented information required to be
submitted to the FDA under its regulations, which information was, and is,
material sand relevant to Plaintiff Elizabeth Conte's harm.
ELEVENTH CAUSE OF ACTION
Medical Negligence
(As against Defendant Dr. Elsen)
99. Plaintiff hereby incorporates by reference all above allegations as if fully
set forth herein.
100. On or about December 12, 1999, and thereafter, Plaintiff Elizabeth Conte
employed Defendant DR. ELSEN and retained him for compensation to examine,
diagnose, prescribe medicine, treat, and care for various medical problems
including gastroesophageal reflux.
101. At all times mentioned in this Complaint, Defendant DR. ELSEN was negligent
in that he:
(a) Failed to render to Elizabeth Conte medical care, treatment and services in
accordance with the standards of practice among physicians with similar training
and experience situated in San Francisco County, California or similar communities
from December, 1999, through on or about April, 2004;
(b) Failed to possess the degree of professional learning, skill and ability,
which other similarly situated healthcare providers ordinarily possess from
December, 1999, through on or about April, 2004;
(c) Failed to use his best judgment and exercise reasonable care and diligence in
his medical care, evaluation and treatment of Elizabeth Conte from December, 1999,
through on or about April, 2004;
(d) Failed to exercise reasonable care and diligence in the application of his
knowledge and skill to his care, evaluation and treatment of Elizabeth Conte;
(e) Prescribed metoclopramide to Elizabeth Conte without first adequately
apprising himself of the side effects of that drug listed on the drug label and
the appropriate duration of use;
(f) Prescribed metoclopramide to Elizabeth Conte without first informing Elizabeth
Conte of the known side effects of metoclopramide use, and the appropriate
duration of use; and
(g) Continued to prescribe metoclopramide to Elizabeth Conte for an inappropriate
amount of time.
102. As a direct result of the negligence of Defendant DR. ELSEN, Plaintiff
Elizabeth Conte has sustained permanent injuries and damages described more fully
herein, including past and future medical expenses and pain and suffering.
JURY DEMAND
Plaintiff demands that all issues of fact in this case be tried to a properly
empanelled jury.
PRAYER FOR RELIEF
Plaintiff respectfully prays for relief against Defendants, and each of them, as
follows:
1. General damages as allowed by law;
2. Special damages as allowed by law;
3. Punitive damages as allowed by law;
4. Costs of suit as allowed by law;
5. Attorneys' fees as allowed by law;
6. Prejudgment and postjudgment interest as allowed by law;
7. Such further or other relief, whether legal or equitable, as the Court deems
proper.
Executed this 23 day of December, 2004.
