United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
L. WHITE, UNITED STATES DISTRICT JUDGE
matter comes before the Court on Defendants' motions for
summary judgment (ECF Nos. 82, 150). These matters are fully
briefed and ready for disposition.
underlying action, Jean Pendino and Paul Pendino, as Next
Friend of Minor Paul Pendino, Jr. filed suit against Wal-Mart
Stores, Inc. ("Wal-Mart") in the St. Louis City
Circuit Court, Missouri ("Circuit Court") in Cause
Number 012-00491 (hereinafter "Underlying Suit").
(ECF No. 84-1). In the Underlying Suit, Pendino sought
damages allegedly resulting from Wal-Mart's failure to
warn that ingestion of the drug "Tegretol" during
pregnancy could adversely affect a fetus. Pendino's
mother ingested Tegretol from April 1994 through October
1996, when Paul Pendino, Jr. was born with disabilities
including spina bifida. The Pendinos alleged that Wal-Mart
filled Jean Pendino's prescriptions for Tegretol.
Defendants PDX, Inc. ("PDX") and Landmark Data,
Inc. n/k/a National Health Information Network, Inc.
("NHIN") were not named as parties in the
discovery of the Underlying Suit, Wal-Mart identified
Medi-Span as its supplier of patient drug education monograph
inserts for Tegretol. Thereafter, Wal-Mart, while denying
liability, settled the Pendinos' underlying lawsuit.
Following the settlement of the Underlying Suit, Wal-Mart
filed lawsuits seeking contributions from Medi-Span, Inc. and
its successors: First DataBank, Inc. and Wo Iters Kluwer
Health, Inc. Wal-Mart alleged that "Medi-Span
distributed monographs to Wal-Mart pharmacies which were
provided to each customer, including Jean [Pendino], who
obtained prescriptions at Wal-Mart during [the period 1994
through 1997]." (ECF No. 84-3, ¶¶8-22). This
suit was dismissed by Wal-Mart and other similar actions were
dismissed by the Court or by Wal-Mart.
in 2008, Wal-Mart and the Pendinos entered into an Addendum
of their Settlement Agreement (Addendum to Full and Final
Release). (ECF No. 18, ¶14). Wal-Mart sought to have the
original Settlement Agreement reformed to include the terms
and conditions of the Addendum. This request was denied by
the trial court. (ECF No. 16-2). The Circuit Court ruled that
the Addendum was a separate, distinct and enforceable
agreement and, therefore, it follows that it was unnecessary
to "reform" the 2004 release. The Circuit Court
further held "[t]he addendum is supported by
consideration, i.e., the 10% contingent share of any
recovery..." (ECF No. 16-2).
MOTIONS FOR SUMMARY JUDGMENT
Motion for Summary Judgment Standard
Court may grant a motion for summary judgment if "the
pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any,
show that there is no genuine issue as to any material fact
and that the moving party is entitled to judgment as a matter
of law." Fed.R.Civ.P. 56(c); Celotex Corp. v.
Citrate, 477 U.S. 317, 322 (1986); Torgerson v. City
of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011). The
substantive law determines which facts are critical and which
are irrelevant. Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986). Only disputes over facts that might
affect the outcome will properly preclude summary judgment.
Id. Summary judgment is not proper if the evidence
is such that a reasonable jury could return a verdict for the
nonmoving party. Id.
moving party always bears the burden of informing the Court
of the basis of its motion. Celotex Corp., 477 U.S.
at 323. Once the moving party discharges this burden, the
nonmoving party must set forth specific facts demonstrating
that there is a dispute as to a genuine issue of material
fact, not the "mere existence of some alleged factual
dispute." Fed.R.Civ.P. 56(e); Anderson, 477
U.S. at 248. The nonmoving party may not rest upon mere
allegations or denials of his pleading. Id.
passing on a motion for summary judgment, the Court must view
the facts in the light most favorable to the nonmoving party,
and all justifiable inferences are to be drawn in his favor.
Celotex Corp., 477 U.S. at 331. The Court's
function is not to weigh the evidence but to determine
whether there is a genuine issue for trial.
Anderson, 4 77 U.S. at 249. '"Credibility
determinations, the weighing of the evidence, and the drawing
of legitimate inferences from the facts are jury functions,
not those of a judge.'" Torgerson, 643 F.3d
at 1042 (quoting Reeves v. Sanderson Plumbing Prods.,
Inc., 530 U.S. 133, 150 (2000)). Finally, "[t]here
is no 'discrimination case exception' to the
application of summary judgment, which is a useful pretrial
tool to determine whether any case, including one alleging
discrimination, merits a trial." Torgerson, 643
F.3d at 1043 (citing Fercello v. County of Ramsey,
612 F.3d 1069, 1077 (8th Cir. 2010), citing Wallace v.
DTG Operations, Inc., 442 F.3d 1112, 1118 (8th Cir.
2006), and quoting Berg v. Norand Corp., 169 F.3d
1140, 1144 (8th Cir. 1999)).