Free Case Transferred In - District Transfer - District Court of California - California

Case 3:07-cv-03419-CRB

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1

Anthony G. Brazil (State Bar No. 84297)

2 Kanika D. Corley (State Bar No. 223607)

MORRS POLICH & PURY LLP
105 5 West Seventh Street, Suite 2400

3

4 Los Angeles, CA 90017 Telephone: (213) 891-9100 5 Facsimile: (213) 488-1178

6

Attorneys for Defendant

7 MCKESSON CORPORATION
8

UNITED STATES DISTRICT COURT

9
10
11

EASTERN DISTRICT OF CALIFORNIA

KEVIN L. CHAY,
Plaintiff,
vs.

Case No. 2:06-CV-02826-FCD-KJM

12
13

ANSWER AND AFFIRMTIVE

14 MERCK & COMPAN, INC., a
Corporation; MCKESSON CORPORATION; a Coæoration; AMRISOURCEBERGEN 16 CORPORATION, a Corporation; PFIZER
15

DEFENSES OF DEFENDANT MCKESSON CORPORATION TO PLAINTIFF'S COMPLAINT;

DEMAN FOR JUY TRIL

17 INC.,; SEARE LLC, (FKA G.D. G. D. PHACIA CORPORATION;
18 SEARE & CO.); DOES 1 to IOOi"'T PHACEUTICAL DEFENDAl'lT
19 DOES 101 to 200; DISTRIBUTOR DEFENDANT DOES 201 to 300,

20 inclusive,
21

Defendants.

22 Defendant MCKESSON CORPORATION ("Defendant") files the following
23 Answer to the unverified Complaint ("Complaint") filed in the matter of KEVIN L.

24 CHANEY v. MERCK & COMPAN, INC., et aL. (The term "Plaintiff' as used herein
25

shall refer to KEVIN L. CHANEY.) Defendant responds to Plaintiff s Complaint as

26 follows:

27 III 28 III

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1 INTRODUCTION
2 McKesson is a wholesale distributor of pharaceuticals, over-the-counter and
3 health and beauty products to chain, independent pharmacy customers and hospitals. As a

4 wholesale distributor, McKesson distributes products manufactured by others. As to

5 VIOXX~/CELEBREX/EXTRA, McKesson does not manufacture, produce, process,
6 test, encapsulate, label, package or repackage these products, nor does it make any
7 representations or warranties as to the products' safety or efficacy. McKesson lacks

8 information or knowledge sufficient to admit or deny the remaining allegations contained
9 in the introduction paragraph of the Complaint and therefore denies such allegations.

10 GENERAL ALLEGATIONS
11 1. McKesson is a wholesale distributor of pharmaceuticals, over-the-counter
12 and health and beauty products to chain, independent pharmacy customers and hospitals.
13 As a wholesale distributor, McKesson distributes products manufactured by others. As to

14 VIOXX~/CELEBREX/EXTRA, McKesson does not manufacture, produce, process,
15 test, encapsulate, label, package or repackage these products, nor does it make any

16 representations or warranties as to the products' safety or efficacy. McKesson lacks

17 information or knowledge sufficient to admit or deny the remaining allegations contained
18 in Paragraph 1 of the Complaint, and its subparts and subparagraphs, and therefore denies

19 such allegations.
20 2. McKesson is without knowledge or information sufficient to form a belief as
21 to the truth or falsity of the allegations of Paragraph 2 of the Complaint, and therefore

22 denies such allegations.

23 3. McKesson is a wholesale distributor of pharmaceuticals, over-the-counter
24 and health and beauty products to chain, independent pharacy customers and hospitals.
25 As a wholesale distributor, McKesson distributes products manufactured by others. As to

26 VIOXX~/CELEBREX/EXTRA, McKesson does not manufac"Nre, produce, process,
27 test, encapsulate, label, package or repackage these products, nor does it make any

28 representations or warranties as to the products' safety or efficacy. McKesson lacks

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1 information or knowledge sufficient to admit or deny the remaining allegations contained
2 in Paragraph 3 of the Complaint and therefore denies such allegations.

3 4. McKesson is without knowledge or information sufficient to form a belief as
4 to the truth or falsity of the allegations of Paragraph 4 of the Complaint and its subparts

5 and subparagraphs, and therefore denies such allegations.

6 5. McKesson is without knowledge or information sufficient to form a belief as
7 to the truth or falsity of the allegations of Paragraph 5 of the Complaint, and therefore

8 denies such allegations.

9 6. McKesson is a wholesale distributor of pharmaceuticals, over-the-counter
10 and health and beauty products to chain, independent pharmacy customers and hospitals.
11 As a wholesale distributor, McKesson distributes products manufactured by others. As to

12 VIOXX~/CELEBREX/EXTRA, McKesson does not manufacture, produce, process,
13 test, encapsulate, label, package or repackage these products, nor does it make any

14 representations or warranties as to the products' safety or efficacy. McKesson lacks

15 information or knowledge sufficient to admit or deny the remaining allegations contained

16 in Paragraph 6 of the Complaint and its subparts and subparagraphs and therefore denies

17 such allegations.
18 7. McKesson is a wholesale distributor of pharmaceuticals, over-the-counter
19 and health and beauty products to chain, independent pharmacy cllstomers and hospitals.

20 As a wholesale distributor, McKesson distributes products manufactured by others. As to

21 VIOXX~/CELEBREX/EXTRA, McKesson does not manufacture, produce, process,
22 test, encapsulate, label, package or repackage these products, nor does it make any

23 representations or warranties as to the products' safety or efficacy. McKesson lacks

24 information or knowledge sufficient to admit or deny the remaining allegations contained

25 in Paragraph 7 of the Complaint and its subparts and subparagraphs, and therefore denies

26 such allegations.

27 III 28 III

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1 AFFIRMTIVE DEFENSES
2 FIRST AFFIRMTIVE DEFENSE
3 8. The Complaint and all causes of action asserted against Defendant fail to

4 state facts sufficient to constitute a cause of action.

5 SECOND AFFIRMATIVE DEFENSE
6 9. Federal law preempts Plaintiffs claims. Plaintiff has asserted claims for
7 relief which, if granted, would constitute an impermissible burden by this Court on
8 Federal laws, regulations, and policies relating to the development and marketing of
9 products, in violation of the Supremacy Clause, Aricle VI of the Constitution of tne

10 United States.

11 THIRD AFFIRMATIVE DEFENSE
12 10. The causes of action alleged in the Complaint are bared by the applicable

13 statutes of limitations and/or statutes of repose, including but not limited to California
14 Code of

Civil Procedure §§ 335.1 and 338 and former § 340(3), California Business and

15 Professions Code § 17208, and California Civil Code § 1783.

16 FOURTH AFFIRMATIVE DEFENSE
17 11. During the time periods alleged in the Complaint, Plaintiff failed to exercise

18 ordinary care on Plaintiff s own behalf for Plaintiff s safety. Plaintiff s recklessness,
19 carelessness and/or negligence caused any injury and damage that Plaintiff may have
20 sustained. Plaintiff s right to recover should be diminished by Plaintiff s proportional

21 share of fault.

22 FIFTH AFFIRMTIVE DEFENSE
23 12. Plaintiff failed to mitigate any damage that Plaintiff may have sustained.
24 Plaintiff failed to exercise reasonable care to avoid the consequences of harm, if any.
25 Among other things, Plaintiff failed to use reasonable diligence in caring for any injury,

26 use reasonable means to prevent aggravation of any injury, and/or take reasonable

27 precautions to reduce any injury and damage.

28 III

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1 SIXTH AFFIRMTIVE DEFENSE
2 13. During the time periods alleged in the Complaint, Plaintiff had full

3 knowledge of the risks and possible adverse effects pertining to the use of the products.

4 Defendant alleges that part or all of the injuries, damages, or losses, if any, that Plaintiff

5 claim to have sustained arose from or were caused by such risks. Plaintiff was aware - of,

6 accepted, and assumed the risks and possible adverse effects. Plaintiffs recovery, if any,
7 should be diminished, reduced, offset, or barred by Plaintiff s assumption of the risks and
8 informed consent.

9 SEVENTH AFFIRMTIVE DEFENSE
10 14. Defendant denies that Plaintiff suffered injuries or incurred any damages, or
11 that any defendant is liable. If Plaintiff did suffer any injuries or incur any damages, any
12 injuries or damages were caused, in whole or in part, by the acts or omissions of persons
13 or entities other than Defendant or superseding or intervening causes over which

14 Defendant had no control. If there is any negligence or liability by any defendant, it is the
15 sole and exclusive negligence and liability of others and not this answering Defendant.

16 EIGHTH AFFIRMATIVE DEFENSE
17 15. The intervening or superseding cause of any injury allegedly sustained by

18 the Plaintiff may be conduct which is ilicit, criminal, or otherwise improper, and for
19 which conduct Defendant canot be held responsible.

20 NINTH AFFIRMTIVE DEFENSE
21 16. Plaintiffs alleged damages, injuries, or losses, if any, were not proximately
22 caused by any alleged act, omission, or breach of duty by Defendant but were caused in
23 whole or in part by the acts or omissions of

Plaintiff and/or others so that the principles of
the risk apply.

24 contributory negligence, comparative fault and/or assumption of

25 TENTH AFFIRMATIVE DEFENSE
26 17. Plaintiff s claims are barred in whole or in part because they have been
27 improperly joined in this action.

28 III

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1

ELEVENTH AFFIRMTIVE DEFENSE'
18. If any of the other parties are negligent, legally responsible, or otherwise at

2
3

fault for the damages alleged in the Master Complaint, and if there is a finding of arty

4
5

liabilty in favor of Plaintiff or settlement or judgment against Defendant, Defendant

requests that the Court or Jury make an apportionment of fault among all parties as
permitted by Li v. Yellow Cab Co. and American Motorcycle Association v. Superior
Court. Defendant further requests a judgment and declaration of partial indemnification
and contribution against all other parties or persons in accordance with the apportionment
of fault.

6

7
8

9 10
11

TWELFTH AFFIRMTIVE DEFENSE,
19. Plaintiff s claims are barred in whole or in part because they have been filed

12
13

II an improper venue.

THIRTEENTH AFFIRMTIVE DEFENSE
20. Plaintiffs alleged injuries were the direct and proximate result of an

14
15

idiosyncratic reaction which was not reasonably foreseeable, or was not the result of any
conduct or negligence on the part of

16 17
18

Defendant; and/or was not the result of any defect in

any product distributed or sold by Defendant.

FOURTEENTH AFFIRMATIVE DEFENSE

19

21. The hazards of foreseeable uses and misuses of the, product are open and
obvious.

20
21

FIFTEENTH AFFIRMATIVE DEFENSE
22. After the products left the possession and control of Defendant, if in fact any

22
23

products were ever in the possession or control of Defendant, the products were

24
25

redesigned, modified, altered, or subjected to treatment that substantially changed their
character without Defendant's knowledge. Any alleged defect resulted, if at all, from the
redesign, modification, alteration, treatment or other change of the products after
Defendant relinquished possession of and control over any of

26
27
28

the products.

III

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1 SIXTEENTH AFFIRATIVE DEFENSE
2 23. The design, manufacture, and marketing of the products were in conformity

3 with the "state of the art" existing at the time of such design, manufacture, and marketing.

4 SEVENTEENTH AFFIRMATIVE DEFENSE
5 24. The learned intermediary doctrine bars Plaintiff s recovery of any damages.

6 Any duty to warn Plaintiff of the risks and hazards associated with the products was
7 discharged by providing adequate warning to physicians.

8 EIGHTEENTH AFFIRMTIVE DEFENSE
9 25. To the extent that Plaintiff alleges a failure to warn by Defendant, Defendant

10 alleges that the manufacturers, physician, and other health care providers associated with
11 the products knew, or should have been aware, of any risk and hazard that Plaintiff andlor

12 Plaintiff s decedent alleges rendered the products defective and that allegedly caused
13 Plaintiffs and/or Plaintiffs decedent's injuries and damages, if any. To the extent that

14 such manufacturers, physician, and other health care providers failed to advise, inform, or

15 warn Plaintiff of such risks and hazards, such failure is imputed to Plaintiff under agency

16 principles and Plaintiff andlor Plaintiffs decedent knowingly and voluntarily assumed
17 the risk of any injury as a result of the consumption of, administration of, or exposure to
18 the product.

19 NINETEENTH AFFIRMTIVE DEFENSE
20 26. The Complaint is barred due to the lack of privity, or a "transaction,"
21 between Plaintiff and Defendant.

22 TWENTIETH AFFIRMATIVE DEFENSE
23 27. This Court lacks personal jurisdiction over this answering Defendant.

24 TWENTY-FIRST AFFIRMTIVE DEFENSE
25 28. Plaintiffs claims are barred in whole or in part by the doctrines of accord
26 and satisfaction, good faith, consent, res judicata, payment and release, waiver, collateral

27 estoppel, judicial estoppel, equitable estoppel, unclean hands, laches, and/or statutory and
28 regulatory compliance.

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1 TWENTY-SECOND AFFIRMTIVE DEFENSE
2 29. The products were not used in the manner in which they were intended to be

3 used. The products were used in a manner that was abnormal and not reasonably

4 foreseeable by Defendant. Such misuse of the products proximately caused or
5 contributed to Plaintiffs alleged damages, injuries, and losses, if any.

6 TWENTY-THIRD AFFIRMTIVE DEFENSE
7 30. The imposition of punitive or exemplary damages against Defendant or that

8 are in any way imputed against the interests of Defendant would violate the ruling in
9 State Farm Mut. Automobile Ins. Co. v. Campbell (2003) 538 U.S. 408, and Defendant's

10 constitutional rights under: the Due Process clauses in the Fifth and Fourteenth

11 Amendments to the Constitution of the United States; the Sixth Amendment to the
12 Constitution of

the United States; the Double Jeopardy clause in the Fifth Amendment to

13 the Constitution of the United States; comparable provisions contained within the

14 California Constitution; the common law and public policies of California; and applicable
15 statutes and court rules, including but not limited to, imposition of punitive damages and

16 determination of such an award:

17 (a) by a jury when the jury is: (i) not given standards of sufficient clarity for

18 determining the appropriateness, and the appropriate size, of a punitive 19 damages award; (ii) not adequately and clearly instructed on the limits on 20 punitive damages imposed by the principles of deterrence and punishment;

21 (iii) not expressly prohibited from awarding punitive damages, or
22 determining the amount of such an award, in whole or in par, on the basis of

23 invidiously discriminatory characteristics, including the corporate status, 24 wealth, or state of residence of Defendant; (iv) permitted to award punitive 25 damages under a standard for determining liability for such damages which 26 is vague and arbitrary and does not define with sufficient clarity the conduct

27 or mental state which makes punitive damages permissible; and (v) not
28

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1 subject to trial court and appellate judicial review for reasonableness, the
2 furtherance of legitimate purpose, and the basis of objective standards;
3 (b) where applicable law is impermissibly vague, imprecise, or inconsistent;

4 (c) subject to no predetermined limit, such as a maximum multiple of

5 compensatory damages or a maximum amount; and
6 (d) based upon anything other than Defendant's conduct in connection with the

7 sale of the products alleged in this litigation, or in any other way subjecting
8 Defendant to impermissible multiple punishment for the same alleged

9 wrong.
10 TWENTY-FOURTH AFFIRMTIVE DEFENSE
11 31. While continuing to deny any and all liability, Defe:idant states that if the
12 court determines that Plaintiff is entitled to assert a claim for punitive damages, such
13 claim cannot be permitted to go forward until the trier of fact determines that punitive

14 damages should be considered, and, ultimately all issues regarding punitive damages
15 should be bifurcated at triaL. Any award for punitive or exemplary damage absent

16 bifurcating trial as to issues of compensatory and exemplary damages would be in
17 violation of Defendant's rights to due process under the Unites States Constitution and
18 the correlative provisions of California law.

19 TWENTY-FIFTH AFFIRMATIVE DEFENSE
20 32. At all times, any products distributed by Defendant were distributed in
21 compliance with all applicable federal, state and local laws and regulations, and rules
22 promulgated and enforced by the Food and Drug Administration. The products were

23 subject to and received pre-market approval by the Food and Drug Administration under

24 52 Stat. 1040, 21 U.S.C. § 301. Compliance with such laws, regulations, and rules

25 demonstrates that due care and reasonable prudence were exercised in the design,
26 manufacture, and promotion of the subject pharmaceutical product and that said product

27 was not defective in any way.

28 III

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1 TWENTY-SIXTH AFFIRMTIVE DEFENSE
2 33. Any damages, injuries and/or losses alleged to have been suffered by
3 Plaintiff has been mitigated, in whole or in part, by reimbursement from collateral
4 sources and therefore, Plaintiffs claims against Defendant are barred and/or reduced by

5 any applicable set off.

6 TWENTY-SEVENTH AFFIRMTIVE DEFENSE
7 34. At all times, Defendant's acts or omissions were privileged, justified, fair

8 and undertaken in the good faith exercise of a valid business purpose.

9 TWENTY-EIGHTH AFFIRMTIVE DEFENSE
10 35. Plaintiff cannot demonstrate the necessary elements to support the request
11 for injunctive relief, including without limitation, a threat of imminent or immediate

12 harm.

13 TWENTY-NINTH AFFIRMTIVE DEFENSE
14 36. Any alleged act or omission by Defendant concerning the manufacture,
15 warning, labeling, advertising and sale ofVIOXX~/CELEBREX/EXTRA referred to in
16 the Complaint, was at all times, the duty of an entity other than Defendant. Defendant
17 acted in good faith concerning all services for which it had a duty to provide as referred

18 to in the Complaint.

19 THIRTIETH AFFIRTIVE DEFENSE
20 37. Plaintiff s claims for disgorgement or restitution are barred under the
21 decision in Kraus v. Trinity Management Services, Inc. (2000) 23 Cal.4th 116 and related

22 authority.

23 THIRTY-FIRST AFFIRMTIVE DEFENSE
24 38. Plaintiffs alleged injuries or illnesses preexisted or were suffered after the
25 alleged use of the products, and Plaintiffs alleged injuries or ilnesses were neither

26 caused nor exacerbated by said alleged use.

27 III 28 III

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1 THIRTY-SECOND AFFIRMATIVE DEFENSE
2 39. Plaintiffs injuries were caused or contributed to by their failure to follow
3 the directions and precautions provided by the product's manufacturer(s).

4 THIRTY-THIRD AFFIRMATIVE DEFENSE
5 40. Plaintiffs breach of warranty claims are barred because Plaintiff failed to
6 give adequate and timely notice of his alleged claims against Defendant and/or because
7 the alleged warranties were disclaimed.

8 THIRTY-FOURTH AFFIRMTIVE DEFENSE
9 41. Defendant's alleged business practices with respect to the subject product

10 were lawful, fair, truthful, not misleading or deceptive, not fraudulent, and were justified
11 based on the state of medical and scientific knowledge available during the relevant time

12 and were in compliance with the applicable laws, regulations, and rules within the

13 meaning of either Business and Professions Code Section 17200, et seq. or Business and

14 Professions Code Section 17500, et seq.

15 THIRTY- FIFTH AFFIRMATIVE DEFENSE
16 42. Plaintiffs claimed injuries andlor damages are so remote, speculative or

17 contingent that Plaintiff s claims must be barred on public policy grounds.

18 THIRTY-SIXTH AFFIRMATIVE DEFENSE
19 43. The conduct alleged in the Complaint does not plead a "violation of law"
20 sufficient to provide the necessar predicate for an "unlawful" business practices claim,
21 or any other claim, under either Business and Professions Code Section 17200, et seq. or
22 Business and Professions Code Section 17500 et seq.

23 THIRTY-SEVENTH AFFIRMATIVE DEFENSE
24 44. Plaintiff s claims under Business and Professions Code Section 17200, et

25 seq. or Business and Professions Code Section 17500 et seq. are barred in whole or in
26 part under principles of substantive and procedural due process.

27 III 28 III

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1

THIRTY-EIGHTH AFFIRMTIVE DEFENSE

2 45. Plaintiffs claims under Business and Professions Code Section 17200, et
3 seq. or Business and Professions Code Section 17500, et seq. are bared in whole or in

4 part because Plaintiff do not qualify as private attorneys general, and for that reason,
5 among others, lack standing to prosecute a claim for injunctive or monetary relief.

6 THIRTY-NINTH AFFIRATIVE DEFENSE
7 46. Plaintiff s claims under Business and Professions Code Section 17200, et

8 seq. or Business and Professions Code Section 17500, et seq. are barred in whole or in
9 part because there is no basis for injunctive relief in this action and Plaintiff has an
10 adequate remedy at law.

11 FORTIETH AFFIRMTIVE DEFENSE
12 47. Plaintiff s claims under Business and Professions Code Section 17200, et

13 seq. or Business and Professions Code Section 17500, et seq. are bared in whole or in
14 part by the doctrine of primary jurisdiction. The subject of pharmaceutical product and

15 any advertising regarding such product are regulated by the Food and Drug
16 Administration and as such, answering Defendant requests that this Court, sitting in

17 equity,' abstain from hearing claims under Sections 17200, et seq. and 17500, et seq.,
18 which are accordingly preempted by Federal law.

19 FORTY-FIRST A FFIRMTIVE DEFENSE
20 48. The Plaintiff is barred from recovery against Defendant because of the
21 sophisticated user doctrine.

22 FORTY-SECOND AFFIRTIVE DEFENSE
23 49. Plaintiffs strict liability claims are barred under the principles set forth in
24 Brown v. Superior Court (1988) 44 Cal.3d 1088.

25 FORTY-THIRD AFFIRMTIVE DEFENSE
26 50. Plaintiffs claim, if any, for loss of consortium is barred because it is
27 derivative of the injured Plaintiffs/decedent's claim, which fails pursuant to the

28 affirmative defenses set forth herein.

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1 FORTY-FOURTH AFFIRMATIVE DEFENSE
2 51. Defendant is a provider of services, not products, and thus is not strictly
3 liable under California law.

4 FORTY-FIFTH AFFIRMTIVE DEFENSE
5 52. Plaintiffs Complaint fails to allege ultimate facts sufficient to state a cause
6 of action predicated upon negligence, strict liabilty, breach of implied warranty, breach
7 of express warranty, failure to warn or deceit by concealment.

8 FORTY-SIXTH AFFIRMTIVE DEFENSE
9 53. Plaintiffs claims of any non-economic damages are subject to California

10 Civil Code § 1431.2, which is applicable to the Complaint and each cause of action
11 therein.

12 FORTY-SEVENTH AFFIRMTIVE DEFENSE
13 54. The product at issue in this litigation is not defective or uneasonably
14 dangerous because it is a prescription pharmaceutical bearing adequate warnings, and is

15 subject to the comment j exception to strict liability as set forth in § 402A of the
16 Restatement (Second) of Torts

(1965), andlor because it is a prescription pharmaceutical

17 that is unavoidably unsafe pursuant to comment k of § 402A of the Restatement (Second)
18 of Torts

(1965).

19

FORTY-EIGHT AFFIRMATIVE DEFENSE
55. Plaintiffs claims are barred in whole or in part because the subject

20
21

pharmaceutical product "provides net benefits for a class of patients" within the meaning
of Comment fto Section 6 of the Restatement (Third) of

22
23

Torts: Products Liability.

FORTY-NINTH AFFIRMATIVE DEFENSE
56.
(Third) of

24
25

Plaintiffs claims are barred under Section 4, et seq., of the Restatement

Torts: Products Liability.

26
27
28

FIFTIETH AFFIRMTIVE DEFENSE
57. Plaintiffs claims, if any, related to negligence per se are barred, in whole or

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1 FIFTY-FIRST AFFIRMTIVE DEFENSE
2 58. Plaintiffs claims are barred in whole or in part by the deference given to the

3 primary jurisdiction of the Food and Drug Administration over the subject

4 pharmaceutical product under applicable federal laws, regulations, and rules. These
5 claims are thus preempted by Federal law.

6 FIFTY-SECOND AFFIRMTIVE DEFENSE
7 59. Plaintiffs claims are barred in whole or in part because there is no private
8 right of action concerning matters regulated by the Food and Drug Administration under
9 applicable federal laws, regulations, and rules.

10 FIFTY-THIRD AFFIRMTIVE DEFENSE
11 60. Plaintiffs claims are barred in whole or in part because Plaintiff lack
12 standing to bring such claims.

13 FIFTY-FOURTH AFFIRMTIVE DEFENSE
14 61. Plaintiff s claims are barred in whole or in part because they fail to meet the
15 requirements of California Code of

Civil Procedure §§ 377.30, et seq., and 377.60, et
action and wrongful death actions.

16 seq., governing a decedent's cause of

17 FIFTY-FIFTH AFFIRMTIVE DEFENSE
18 62. Plaintiffs claims are barred to the extent they are made by, or on behalf of,
19 out of state Plaintiff or Plaintiff s decedent, or arose from events occurring out of state,
20 are barred in whole or in part under principles of forum non conveniens and due process.

21 FIFTY-SIXTH AFFIRMTIVE DEFENSE
22 63. Plaintiff s claims are barred in whole or in part because the Complaint fails
23 to join necessary and indispensable parties.

24 FIFTY-SEVENTH AFFIRMATIVE DEFENSE
25 64. Plaintiff s Consumer Legal Remedies Act cause of action is barred because

26 it fails to meet the requirements of California Civil Code §§ 1750, ét seq.

27 III 28 III

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1 FIFTY-EIGHTH AFFIRMATIVE DEFENSE
2 65. Defendant did not design, manufacture, formulate, distribute, market, sell,

3 research, develop, test or supply the VIOXX~/CELEBREX/EXTRA that was alleged
4 to have been ingested by Plaintiff and/or any of

the ingredients contained therein.

5 FIFTY-NINTH AFFIRMATIVE DEFENSE
6 66. Plaintiff failed to allege specific facts that Defendant distributed and/or
7 supplied the subject product that Plaintiff allegedly ingested. ,Accordingly, Plaintiff
8 failed to plead facts sufficient to show an actual connection between Defendant's alleged

9 conduct and the Plaintiff s purported injury and Defendant has, therefore, been
10 fraudulently joined.

11 SIXTIETH AFFIRMTIVE DEFENSE
12 67. Plaintiffs vague allegations are legal conclusions direCted at "defendants" in
13 general and fail to support any claims specific to Defendant.

14 SIXTY-FIRST AFFIRMTIVE DEFENSE
15 68. Plaintiffs claims are barred by the applicable prescriptive periods or statutes
16 of limitations provided for such claims.

17 SIXTY-SECOND AFFIRMATIVE DEFENSE
18 69. Defendant denies that the products distributed by it caused or contributed to
19 the alleged injuries of Plaintiff and further denies that it is liable to Plaintiff for the claims
20 alleged or for any other claims whatsoever.

21 SIXTY-THIRD AFFIRMATIVE DEFENSE
22 70. Defendant did not make any material representation of fact regarding the

23 products it distributes which was not true, or if such representation was made, which
24 Defendant specifically denies, then McKesson did not make such representation with the

25 intent to either deceive or to induce Plaintiff to act in justifiable reliance.

26 III 27 III 28 III

Loon095 -15-

ANSWER AN AFFIRTIV DEFENSES OF DEFENDANT MCKESSON CORPORATION TO

PLAITIFF'S COMPLAIT; DEMA FOR JUY TRI

Case 3:07-cv-03419-CRB

Document 1-11

Filed 06/29/2007

Page 16 of 19

1 SIXTY-FOURTH AFFIRMTIVE DEFENSE
2 71. Plaintiff did not justifiably rely, in any fashion whatsoever, upon any
3 statement, representation, advice or conduct of McKesson, and did not act upon any
4 statement, representation advice or conduct to their detriment.

5 SIXTY-FIFTH AFFIRMATIVE DEFENSE
6 72. Defendant asserts that as of the relevant times alleged in the Complaint, it

7 did not know and, in light of the then existing reasonable available scientific and
8 technological knowledge, could not have known of: (1) the design characteristics, if any,

9 that allegedly caused the injuries and damages complained of in the Petition; (2) the

10 alleged danger of any such design characteristics.

11 SIXTY-SIXTH AFFIRMATIVE DEFENSE
12 73. Plaintiff s claims are barred, in whole or in part, to the extent Plaintiff, or
13 any state entity acting on behalf of Plaintiff, has released, settled, entered into an accord
14 and satisfaction or otherwise compromised Plaintiff s claims.

15 SIXTY-SEVENTH AFFIRMTIVE DEFENSE
16 74. Defendant is entitled to set-off, should any damages b~ awarded against it, in

17 the amount of damages or settlement amounts recovered by Plaintiff, or any state entity

18 acting on behalf of Plaintiff, with respect to the same alleged injuries. Defendant is also

19 entitled to have any damages that may be awarded to Plaintiff reduced by the value of
20 any benefit or payment to Plaintiff, or any state entity acting on behalf of Plaintiff, from

21 any collateral source.

22 SIXTY-EIGHTH AFFIRMTIV DEFENSE
23 75. Defendant asserts that it has complied with all applicable state and fedeàil
24 laws relating to the distribution and/or sale of pharmaceuticals.

25 SIXTY-NINTH AFFIRMTIVE DEFENSE
26 76. To the extent Plaintiff assert claims based upon an alleged failure by 27 Defendant to warn Plaintiff directly of alleged dangers associated with the use of
28

Loon095 -16-

ANSWER AN AFFIRTIV DEFENSES OF DEFENDANT MCKESSON CORPORATION TO

PLAITIFF'S COMPLAIT; DEMA FOR JUY TRI

Case 3:07-cv-03419-CRB

Document 1-11

Filed 06/29/2007

Page 17 of 19

1 VIOXX~/CELEBREX/EXTRA, such claims are barred under the learned intermediary
2 doctrine.

3 SEVENTIETH AFFIRMATIVE DEFENSE
4 77. Defendant reserves the right to rely upon other affirmative defenses as they

5 become reasonably available and apparent during the discovery proceedings in this case;

6 Defendant reserves the right to amend this Answer to assert any such defenses.

7 WHEREFORE, MCKESSON prays for relief as follows:
8 1. That Plaintiff take nothing by this action;
9 2. That judgment be entered in favor of

MCKESSON and against Plaintiff;

10 3. That MCKESSON be awarded costs of suit herein; and
11 4. For such other and further relief as the Cour may deem

just and proper.
Respectfully Submitted,

12
13

Dated: December B-, 2006

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15

MORRS POLICH & PURY LLP
By: Isl Kanika D. Corley. Esq. Anthony G. Brazil Kanika D. Corley Attorneys for Defendant MCKESSON CORPORATION

16 17
18

19

20
21

TUCKER ELLIS & WEST LLP By: Isl Peter E. Schnaitman. Esq.
Michael C. Zellers (State Bar No. 146904) Peter E. Schnaitman (State Bar No. 218982)
Tae- Y oon Kim (State Bar No. 209934)

22
23

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25

Tucker Ells & West LLP 1000 Wilshire Boulevard, Suite 1800 Los Angeles, CA 90017-2475
Telephone: (213) 430-3400
Facsimile: (213) 430-3409

26 27 28

E-mail: michael.zellers(ßtuckerells.com E-mail: peter.schnaitman~tuckerells.com

E-mail: tae.kim~tuckerells.com

Attorneys for Defendant

Loon095 -1 7-

MCKESSON CORPORATION

ANSWER AN AFFIRTIV DEFENSES OF DEFENDANT MCKESSON CORPORATION TO

PLAITIFF'S COMPLAIT; DEMA FOR JUY TRI

Case 3:07-cv-03419-CRB

Document 1-11

Filed 06/29/2007

Page 18 of 19

1 DEMA FOR JURY TRIL
2 Defendants hereby demand trial by jury in this matter.

3

4 Dated: December -l, 2006
5

Respectfully Submitted,

MORRS POLICH & PURY LLP
By: Isl Kanika D. Corley Anthony G. Brazil Kanika D. Corley Attorneys for Defendant
MCKESSON CORPORATION

6 7
8

9
10
11

TUCKER ELLIS & WEST LLP
By: Isl Peter E. Schnaitman. Esq.
Michael C. Zellers (State Bar No. 146904)' Peter E. Schnaitman (State Bar No. 218982) Tae-Yoon Kim (State BarNo. 209934) Tucker Ellis & West LLP 1000 Wilshire Boulevard, Suite 1800 Los Angeles, CA 90017-2475
Telephone: (213) 430-3400
Facsimile: (213) 430-3409

12
13

14
15

16 17 18

19

E-mail: michael.zellers~tuckerellis.com

20
21

E-mail: peter.schnaitman~tuckereiiis.com

E-mail: tae.kim~tuckerells.com

22
23

Attorneys for Defendant
MCKESSON CORPORATION

24
25

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28

Loon095 -18-

ANSWER AN AFFIRTIV DEFENSES OF DEFENDANT MCKESSON CORPORATION TO

PLAINTIFF'S COMPLAIT; DEMA FOR JUY TRI

Case 3:07-cv-03419-CRB

Document 1-11

Filed 06/29/2007

Page 19 of 19

1

ELECTRONIC PROOF OF SERVICE
I am employed in the County of Los Angeles, State of California. I am over the age of eighteen (18) years and am not a part to the within action.
On December 14,2006, pursuant to the Court's Electronic Filing System, I

2
3

4
5

~ submitted an electronic version of the following document via file transfer protocol t ECF (Electronic Case Filing)
o submitted a hard copy of the following document to ECF (Electronic Case Filing) by

6 7
8

o facsimile

o

overnight delivery

9

10 "ANSWER AND AFFIRMATIVE DEFENSES OF DEFENDANT MCKESSON
CORPORATION TO PLAINTIFF'S COMPLAINT; DEMAND FOR JURY TRIAL"
11

12

13
14

o STATE I declare under penalty of perjury under the laws of the state of California, that the above i
true and correct.

~ FEDERAL I declare that I am employed in the office of a member of the bar of this cour at whos
15

direction the service was made

16
17 18 19

Executed on December 14,2006, at Los Angeles, Californa.

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21

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23

~~
-1-

Elena Ju -Holgum r .

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25

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ELECTRONIC PROOF OF SERVICE