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Case 3:99-cv-00305-G Document 102 Filed 02/09/07 Page 1 of 4 PageID 2853

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHER DISTRICT OF TEXAS

DALLAS DIVISION

CINDY BURTON,

Plaintiff,

v.

WYETH-AYERST LABORATORIES
DIVISION OF AMERICAN HOME
PRODUCTS CORPORATION, ET AL.,

Defendants.

3:99–CV:0305–G

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§ CIVIL ACTION NO.
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ECF



PLAINTIFF’S RESPONSE TO DEFENDANT

WYETH’S MOTION FOR PARTIAL SUMMARY JUDGMENT

Plaintiff, Cindy Burton, responds to Defendant’s motion for partial summary

judgment, as follows:

1.

Introduction

Wyeth has moved for partial summary judgment on three theories of liability: (1) Ms.

Burton’s claim of “exercise-induced” pulmonary arterial hypertension (PAH); (2) negligence

per se; and (3) conspiracy. With regard to the last two grounds, Ms. Burton withdraws and

abandons her claims for negligence per se and conspiracy. With regard to the first ground,

Wyeth has failed to show its entitlement to summary judgment and fact issues remain. For

that reason, the motion should be denied.

2.

There is no merit in Wyeth’s motion for partial summary judgment on
“exercise-induced” PAH.

As a preliminary matter, Ms. Burton never made a claim for “exercise-induced” PAH.

That is Wyeth’s term. Wyeth uses the term because Ms. Burton’s PAH is diagnosed on

Plaintiff’s Response to Defendant Wyeth’s Motion for Partial Summary Judgment

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Case 3:99-cv-00305-G Document 102 Filed 02/09/07 Page 2 of 4 PageID 2854

exercise. Moreover, there are volumes of scientific studies that demonstrate that Wyeth’s

diet drugs cause PAH—and none of those studies makes the artificial distinction that Wyeth

attempts to make in its motion.

In this case, there is no dispute that the medical and scientific community has reached

a “consensus definition” of PAH. There is no dispute about this because even the

Defendant’s experts use that definition. That definition provides for a diagnosis on exercise,

as Ms. Burton’s diagnosis was. There is no dispute that Ms. Burton fits within the

“consensus definition” of PAH. And, as stated, there are volumes of studies that conclude

that PAH is caused by Ms. Burton’s use of Wyeth’s diet drugs. Those studies are reliable

evidence of causation under Merrell Dow Pharmaceuticals, Inc. v. Havner, 953 S.W.2d 706,

720 (Tex. 1997). Wyeth improperly attempts to “reanalyze” or “dissect” those studies to

reach a different conclusion than the studies’ authors. Havner rejects that approach. Id.

Thus, because there is sufficient evidence that Ms. Burton’s PAH was caused by her

ingestion of Wyeth’s diet drugs, Wyeth’s motion is without merit and should be denied.

CONCLUSION

Ms. Burton’s claims for negligence per se and conspiracy—alleged by Ms. Burton’s

prior counsel—are withdrawn and abandoned. As is set forth in the accompanying brief,

Wyeth’s first ground for summary judgment—based on its “exercise-induced” distinction—is

without merit and should be denied.

Plaintiff’s Response to Defendant Wyeth’s Motion for Partial Summary Judgment

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Case 3:99-cv-00305-G Document 102 Filed 02/09/07 Page 3 of 4 PageID 2855

Respectfully submitted,

THE HOLMAN LAW FIRM, P.C.

s/ David W. Holman
David W. Holman
Texas Bar No. 09902500
24 Greenway Plaza, Suite 2000
Houston, Texas 77046
Telephone
Facsimile

713.400.4840
713.400.4841

LAW OFFICE OF RAYMOND VALORI

Raymond Valori
Florida Bar No. 33200
2665 Executive Park Drive, Suite 3
Weston, Florida 33331
Telephone
Facsimile

954.467.6400
954.670.2530

THE LAW OFFICES OF FREEDLAND,
FARMER, RUSSO & SHELLER

Michael Freedland
Florida Bar No. 128988
2665 Executive Park Drive, Suite 3
Weston, Florida 33331
Telephone
Facsimile

954.467.6400
954.670.2530

SHELLER, LUDWIG & SHELLER

Steve Sheller
1528 Walnut Street, 3d Floor
Philadelphia, Pennsylvania 19102
Telephone
Facsimile

215.790.7300
215.546.0942

Plaintiff’s Response to Defendant Wyeth’s Motion for Partial Summary Judgment

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Case 3:99-cv-00305-G Document 102 Filed 02/09/07 Page 4 of 4 PageID 2856

THE MCLARTY FIRM, P.C.

Mary Alice McLarty
Texas Bar No. 13740450
3811 Turtle Creek Blvd., Suite 1400
Dallas, Texas 75219
Telephone
Facsimile

972.974.9883
972.774.9889

Attorneys for Plaintiff

CERTIFICATE OF SERVICE

I hereby certify that on February 8, 2007, I electronically submitted the foregoing
document with the clerk of court for the U.S. District Court, Northern District of Texas,
using the electronic case files system of the court. The electronic case files system sent a
“Notice of Electronic Filing” to the following individuals:

Mr. David J. Duke

Mr. Kenneth J. Ferguson

CLARK, THOMAS & WINTERS, P.C.

P. O. Box 1148

Austin, Texas 78767

Telephone 512.472.8800 Facsimile512.474.1129

Counsel for Defendant, Wyeth

Mr. David P. Stone

HARTLINE, DACUS, BARGER, DRYER & KERN

6688 N. Central Expressway, Suite 1000

Dallas, Texas 75206

Telephone 214.346.3705 Facsimile 214.369.2118

Counsel for Defendant, Eckerd Drugs

s/ David W. Holman
David W. Holman

Plaintiff’s Response to Defendant Wyeth’s Motion for Partial Summary Judgment

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