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In re Prempro Products Liability Litigation

October 29, 2007

IN RE PREMPRO PRODUCTS LIABILITY LITIGATION
HELEN HILL PLAINTIFF
v.
WYETH, ET. AL. DEFENDANTS



The opinion of the court was delivered by: Wm. R. Wilson, Jr. United States District Judge

MDL Docket No. 4:03CV1507-WRW

ORDER

Pending are Plaintiff's Motion for Partial Summary Judgment Regarding Certain Wyeth Affirmative Defenses (Doc. No. 52) and Motion for Partial Summary Judgment Regarding Certain Upjohn Affirmative Defenses (Doc. No. 56). Defendants have responded.*fn1 Both motions are GRANTED in PART, DENIED in PART, and MOOT in PART.

Wyeth's Affirmative Defenses

Wyeth agreed either to withdraw or voluntarily dismiss every affirmative defense other than those listed below.

1. Affirmative Defense Nos. 2, 3, 6, 7, 9, 12, 25, 26, and 30 are MOOT, since "Wyeth has agreed not to pursue these defenses in this case."*fn2

2. Affirmative Defense No. 11 -- Laches, Waiver, and Estoppel -- is WITHDRAWN.*fn3

3. Affirmative Defense No. 23 -- Liability Without Causation Violates the Constitution -- is MOOT, since Plaintiff is not pursuing claims under the ADTPA.

4. Affirmative Defense No. 27 -- Breach of Warranty, No Privity -- is MOOT, since Plaintiff is not pursing claims for breach of warranty.

5. Plaintiff's Motion for Summary Judgment on Affirmative Defense No. 28 -- Act of God -- is GRANTED.

6. Plaintiff's Motion for Summary Judgment on Affirmative Defense No. 32 --Punitive Damages are Unconstitutional Due to Lack of Standards -- is DENIED without prejudice

Upjohn's Affirmative Defenses

Upjohn agreed either to withdraw or voluntarily dismiss every affirmative defense other than those listed below. As to the remaining affirmative defenses:

1. Plaintiff's Motion for Summary Judgment on Affirmative Defense No. 27 --Noerr-Pennington Doctrine -- is taken under "advisement." It doesn't appear to me that the Noerr-Pennington Doctrine applies to the facts of this case. However, if this affirmative defense becomes an issue, the parties may re-argue ...


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