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Osorio V. Baxter Int, Inc.: Case Study

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C. Records Second, Pfizer may be able to argue that it has better records than Rector. Courts have not consistently dealt with records as evidence of product identification. Courts are currently divided about whether plaintiffs must provide records to satisfy their product identification burden. Many courts have implied that a plaintiff must provide more than just their testimony to establish product identification. Mississippi Valley Silica Co. v. Reeves, 141 So. 3d 377, 383 (Miss. 2014); Osorio v. Baxter Int'l, Inc., 2011 U.S. Dist. LEXIS 48820, *2 (N.D. Ohio May 6, 2011). For example, in Reeves, the Court found that the plaintiff did not meet his burden on product identification because there were no records that the plaintiff ever interacted …show more content…

While plaintiffs may not have to provide any records at all, defendants appear to need to provide strong records to win at summary judgment. For example, in Wagoner, the plaintiff only presented evidence that his brother-in-law saw the product at the plant they worked out. Wagoner v. Exxon Mobil Corp., 813 F. Supp. 2d 771, 796-97 (E.D. La. 2011). The defendants put on testimony that the plant had never purchased that product before, but could not provide supporting records. Id. The Court found that this was conflicting testimony that the jury should hear and thus the Court denied summary judgment. Id. In contrast, if defendants can provide nearly conclusive documents, then they may win summary judgment. Nat'l Bank of Commerce of El Dorado, Arkansas v. Dow Chem. Co., 165 F.3d 602, 606-07 (8th Cir. 1999). For example, if a defendant could use records to show that the company had never bought the product then summary judgment likely would be appropriate for the defendant. …show more content…

One court found that New York’s mandatory generic drug law was conclusive proof that the plaintiff received a generic drug because the pharmacist had no choice, but to fill the prescription with generic drugs. Zandi v. Wyeth, No. A08-1455, 2009 WL 2151141, at *3 (Minn. Ct. App. July 21, 2009). In contrast, a different court found that West Virginia’s generic drug law was not conclusive evidence because it merely allowed a pharmacist to fill a prescription with a generic version of a drug. Keffer v. Wyeth, No. CIV.A. 2:04-0692, 2011 WL 1838966, at *3-4 (S.D.W. Va. May 13, 2011). Pfizer may be able to use Missouri’s generic drug statute as evidence against product identification. Unfortunately, Missouri’s statute is closer to West Virginia’s than it is New York’s because it is not mandatory. MO. ANN. STAT. § 338.056 (West 1996). Therefore, we likely cannot argue it is conclusive evidence that generic drugs were given to Rector. However, we can likely still use it as evidence as the statute does suggest a normal operating procedure of prescribing generic drugs. E.

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