This lawsuit is a little unusual because it is a wrongful death lawsuit. James Willett developed Tardive Dyskinesia while taking Metoclopramide, and as such, he was unable to receive a transplant. This is a lawsuit filed against the manufacturer and the seller of the Metoclopramide he ingested.
14. The drug in question was an unreasonably dangerous product, subject to strict
product liability in tort, because it presented an unreasonable risk of the
development of tardive dyskinesia and other injuries and, in fact, caused the
injuries and the damages which Plaintiffs have suffered. The drug was unsafe for
its intended purposes at the time it left the control of Defendant TEVA and was
sold. The foreseeable risks of the drug exceeded the benefits associated with its
formulation. The drug was more dangerous than an ordinary consumer would expect.15. The drug in question was unaccompanied by proper warnings regarding the degree
of risk for tardive dyskenisia. The warnings accompanying the drug in question did
not accurately reflect the nature, scope, or severity of the potential for injury
from the use of the drug.16. Metoclopramide, as manufactured and/or supplied, by Defendants is a defective
product due to inadequate post-marketing warnings and instructions. After
Defendants knew or should have known that metoclopramide posed dangers and risks
to potential patients, Defendants failed to take steps to warn and/or cause
consumers, potential consumers, and health care professionals to be advised of
such dangers and risks.17. The defective and unreasonably dangerous drug metoclopramide and the described
defects were a producing cause of the damages and injuries suffered by Plaintiffs
set out hereinbelow. Defendants are liable to Plaintiffs under the doctrine of
strict liability as contained in s402A of the Restatement Second of the Law of
Torts as adopted by the Supreme Court of Texas.
United States District Court, N.D. Texas,
Dallas Division.
Mary WILLET, Individually and as Representative of the Estate of James E. Willett,
Jr., Deceased, Maurissa Dee Willett, and James Raughn Willett, Plaintiffs,
v.
TEVA PHARMACEUTICALS USA, INC., Wal-Mart Stores, Inc., and Wal-Mart Stores East,
Inc., Defendants.
No. 3:06-CV-1579-N.
April 20, 2007.
Plaintiffs' Second Amended Complaint
Respectfully submitted, s/ Ralph D. Huston, TBA# 10330700, The Huston Law Firm,
Schechter Building, Third Floor, 3200 Travis, Houston, Texas 77006, Telephone:
(713)757-7811, Fax: (713)751-0412, E-mail: [email protected], Attorney for
Plaintiffs.
TO THE HONORABLE JUDGE OF SAID COURT:
MARY WILLET, Individually and as Representative of the Estate of JAMES E. WILLETT,
JR., DECEASED, MAURISSA DEE WILLETT, and JAMES RAUGHN WILLETT, Plaintiffs, file
this Second Amended Complaint, complaining of TEVA PHARMACEUTICALS USA INC.,
WAL-MART STORES, INC., and WAL-MART STORES EAST, INC., and in support thereof
would show the Court as follows:
I.
PARTIES
1. Plaintiffs MARY WILLET, Individually and as Representative of the Estate of
JAMES E. WILLETT, JR., DECEASED, MAURISSA DEE WILLETT, and JAMES RAUGHN WILLETT
are individuals residing in Navarro County, Texas.
2. Defendant TEVA PHARMACEUTICAL S USA INC. [hereinafter "TEVA"] is a corporation
that has appeared and answered in this action.
3. Defendant WAL-MART STORES, INC. is a corporation that has appeared and answered
in this action.
4. Defendant WAL-MART STORES EAST, INC. is a corporation that has appeared and
answered in this action.
Defendants WAL-MART STORES, INC., and WAL-MART STORES EAST, INC., are hereinafter
collectively referred to as WAL-MART.
II.
JURISDICTION
5. Defendant TEVA removed this case to this Court based on diversity jurisdiction.
III.
CONDITIONS PRECEDENT
6. All conditions precedent have been performed or have occurred. FED.R.CIV.PROC.
9(c).
IV.
FACTUAL BACKGROUND
7. Decedent JAMES E. WILLETT, JR., received medical treatment from various health
care providers for interstitial pneumonitis/pulmonary fibrosis. In this
connection, he was placed on the transplant list at UNIVERSITY OF TEXAS
SOUTHWESTERN - ST. PAL L LUNG TRANSPLANT CLINIC. Plaintiff MARY WILLETT is the
widow of Decedent JAMES E. WILLETT, JR. Plaintiffs MAURISSA DEE WILLETT, and JAMES
RAUGHN WILLETT are the children of Decedent JAMES E. WILLETT, JR.
8. In an attempt to solve issues with gastric emptying, Decedent JAMES E. WILLETT
was prescribed metoclopramide 10 mg. In August or September, 2004, Plaintiff JAMES
E. WILLETT, JR., began suffering the symptoms of tardive dyskenisia which has
become a permanent condition. Due to this condition, Decedent JAMES E. WILLETT,
JR., was removed from the transplant list and lost transplant eligibility.
9. The metoclopramide which Decedent JAMES E. WILLETT, JR., was provided was
designed, manufactured, and/or marketed by Defendant TEVA PHARMACEUTICAL S USA
INC.
10. Decedent JAMES E. WILLETT, JR., died on March 8, 2007.
V.
CORPORATE RESPONSIBILITY
11. Whenever it is alleged herein that any of the corporate entities or businesses
engaged in an act or omission, it is alleged that such act or omission was that of
an officer, employee, or other agent of the corporate entity or business.
VI.
ALLEGATIONS
A.
PRODUCT LIABILITY
12. Defendant TEVA is the "manufacturer," under Chapter 82 of the TEXAS CIVIL
PRACTICE & REMEDIES CODE, of the drug metoclopramide at issue in this litigation
and placed the drug, which had defects in design and marketing, in the stream of
commerce.
13. Defendant WAL-MART was the "seller," under Chapter 82 of the TEXAS CIVIL
PRACTICE & REMEDIES CODE, that provided the drug in question to Plaintiff JAMES E.
WILLETT, JR., and is liable to Plaintiffs in strict liability under Sec. 82.003
(4)and/or (6).
14. The drug in question was an unreasonably dangerous product, subject to strict
product liability in tort, because it presented an unreasonable risk of the
development of tardive dyskinesia and other injuries and, in fact, caused the
injuries and the damages which Plaintiffs have suffered. The drug was unsafe for
its intended purposes at the time it left the control of Defendant TEVA and was
sold. The foreseeable risks of the drug exceeded the benefits associated with its
formulation. The drug was more dangerous than an ordinary consumer would expect.
15. The drug in question was unaccompanied by proper warnings regarding the degree
of risk for tardive dyskenisia. The warnings accompanying the drug in question did
not accurately reflect the nature, scope, or severity of the potential for injury
from the use of the drug.
16. Metoclopramide, as manufactured and/or supplied, by Defendants is a defective
product due to inadequate post-marketing warnings and instructions. After
Defendants knew or should have known that metoclopramide posed dangers and risks
to potential patients, Defendants failed to take steps to warn and/or cause
consumers, potential consumers, and health care professionals to be advised of
such dangers and risks.
17. The defective and unreasonably dangerous drug metoclopramide and the described
defects were a producing cause of the damages and injuries suffered by Plaintiffs
set out hereinbelow. Defendants are liable to Plaintiffs under the doctrine of
strict liability as contained in s402A of the Restatement Second of the Law of
Torts as adopted by the Supreme Court of Texas.
B.
NEGLIGENCE
18. Defendant TEVA was negligent in the following particulars:
a. Failing to conduct adequate testing of metoclopramide before marketing the
drug.
b. Failing to adequately consider prior testing and study of the effects of
metoclopramide.
c. Failing to adequately warn physicians and the general public of the known
potential danger of metoclopramide and the continuing findings regarding danger
and degree of risk.
d. Failure to use reasonable care in formulating and manufacturing metoclopramide
so as to avoid the described risks to individuals who were prescribed the drug.
19. Defendant WAL-MART was negligent in the following particulars:
a. Failing to adequately warn the general public of the known potential danger of
metoclopramide.
b. Utilizing a "monograph" warning regarding metoclopramide which failed to
adequately warn and advise the general public regarding metoclopramide.
20. Defendant TEVA engaged in acts and/or omissions in connection with the product
labeling of metoclopramide which constituted negligence per se as that term is
understood under Texas law, as follows:
a. The labeling did not state that there was a lack of evidence to support the
common belief of the safety and efficacy of metoclopramide, in violation of 21 CFR
s201 .57(C)(3)(i) and/or (iv) anchor (c)(2);
b. There was inadequate information for patients for the safe and effective use of
metoclopramide in combination, in violation of21 CFR s201.57(f)(2);
c. There was inadequate information regarding special care to be exercised by
physicians for safe and effective use of metoclopramide in combination, in
violation of21 CFR s201.57(f)(1); and
d. he labeling of metoclopramide was misleading and/or promotional in part, in
violation of 21 CFR s201.56(b).
21. The acts and omissions of Defendants TEVA and WAL-MART. constituting
negligence described hereinabove, taken separately and collectively, constitute
direct and proximate causes of the injuries and damages set forth below.
C.
WARRANTY
22. Defendant TEVA made the following warranties to Plaintiffs:
a. The express warranty that metoclopramide was a safe and effective drug.
b. The implied warranty that metoclopramide was safe when in fact said Defendant
knew that the drug was not safe for all foreseeable uses.
c. The implied warranty that metoclopramide was of merchantable quality and fit
for its intended uses. The users of metoclopramide and the physicians prescribing
it reasonably relied upon the skill and judgment of Defendant TEVA as to whether
metoclopramide was of merchantable quality and fit for its intended uses.
23. These warranties were breached because metoclopramide was not a safe and
effective drug, was not safe for foreseeable and/or intended uses, and was not of
merchantable quality.
24. These breaches of warranty were legal causes of the injuries and damages set
forth below.
VII.
DAMAGES
A.
WRONGFUL DEATH
25. This cause of action arises under Section 71.004 of the Texas Civil Practice
and Remedies Code.
26. Decedent is JAMES E. WILLETT, JR.
27. The wrongful death beneficiaries of JAMES E. WILLETT, JR., under the Wrongful
Death statute are as follows:
Name Relationship to Decedent
MARY WILLET Wife
MAURISSA DEE WILLETT Daughter
JAMES RAUGHN WILLETT Son
JENNIFER ANNE WILLETT Daughter
ANDREA LYNNE WILLETT Daughter
28. The wrongful death of Decedent occurred as a proximate result of the
negligence and unreasonably dangerous products set out hereinbelow.
29. Decedent JAMES E. WILLETT, JR., was 60 years of age at the time of his death.
30. Plaintiffs MARY WILLETT, MAURISSA DEE WILLETT, and JAMES RAUGHN WILLETT have
suffered pecuniary loss as a result of the death of their husband and father,
including losses of care, maintenance, support, services, advice, counsel, and
contributions of a pecuniary value that they would, in reasonable probability,
have received from their husband and father during their lifetimes, had he lived.
Plaintiffs MARY WILLETT, MAURISSA DEE WILLETT, and JAMES RAUGHN WILLETT have
suffered additional losses by virtue of the destruction of the husband-wife and
parent-child relationship including the right to love, affection, solace, comfort,
companionship, society, emotional support, and happiness. They have suffered and
will continue to suffer mental anguish, grief, and sorrow as a result of the death
of their husband and father well into the future.
31. For these losses, Plaintiffs MARY WILLETT, MAURISSA DEE WILLETT, and JAMES
RAUGHN WILLETT seek damages.
B.
SURVIVAL ACTION
32. As a legal result of the product, the described breaches of warranty, and the
acts and/or omissions of all Defendants, Decedent endured severe bodily injury and
conscious pain and suffering. Additionally, the estate of such Decedent has
incurred reasonable and customary charges for medical treatment, funeral and
burial.
33. As a legal result of all of the above and foregoing, the Estate of JAMES E.
WILLETT, JR., has been damaged in an amount for which MARY WILLET as
Representative of the Estate of JAMES E. WILLETT hereby sues.
34. By reason of all the above and foregoing, Plaintiffs have suffered losses and
damages, for which they hereby sue.
VIII
JURY DEMAND
Plaintiffs hereby request a trial by jury on all issues in this case.
IX
PRAYER
WHEREFORE, Plaintiffs request that Defendants be cited to appear and answer, and
that on final trial, Plaintiffs have judgment against Defendants for an amount in
conformity with the evidence presented, together with prejudgment and
post-judgment interest at the legal rate, costs of court, and for such other and
further relief to which Plaintiffs may be justly entitled.
Respectfully submitted,
s/ Ralph D. Huston
TBA# 10330700
THE HUSTON LAW FIRM
Schechter Building, Third Floor
3200 Travis
Houston, Texas 77006
Telephone: (713)757-7811
Fax: (713)751-0412
E-mail: [email protected]
ATTORNEY FOR PLAINTIFFS
Mary WILLET, Individually and as Representative of the Estate of James E. Willett,
Jr., Deceased, Maurissa Dee Willett, and James Raughn Willett, Plaintiffs, v. TEVA
PHARMACEUTICALS USA, INC., Wal-Mart Stores, Inc., and Wal-Mart Stores East, Inc.,
Defendants.
