20-1383-cv Gayle v. Pfizer, Inc. UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

1 At a stated term of the United States Court of Appeals for the Second Circuit, 2 held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City 3 of New York, on the 12th day of May, two thousand twenty-one. 4 5 PRESENT: PIERRE N. LEVAL, 6 RAYMOND J. LOHIER, JR., 7 Circuit Judges, 8 GARY S. KATZMANN, 9 Judge.* 10 ------------------------------------------------------------------ 11 BARBARA GAYLE, NORMA CLARK, LAURA 12 FLORES, DOROTHY JONES, ROSALIE 13 BUONAMANO, ARNOLD BUONAMANO, 14 CAROL MEIDL, CHRISTIE KELLY, PEARLY 15 COLEMAN, MARA SCOTT, RONNIE SCOTT, 16 CHERRY RICHARDSON, CHERYL DORSEY, 17 TAMMY AXELROD, BRYAN AXELROD, 18 CHARLIE JOHNSON, TAWNYA LOCKHART, 19 LEONA RHETT, TOMMIE A. RHETT, 20 JACQUELYN LOVETT, SHARON STEWART, 21 SHENNA ALBERT, CARLETHA FOSTER, 22 MICHELLE O’BREMSKI,

* Judge Gary S. Katzmann, of the United States Court of International Trade, sitting by designation. 1 2 Plaintiffs-Appellants, 3 4 v. 20-1383-cv 5 6 PFIZER, INC., 7 8 Defendant-Appellee.** 9 ------------------------------------------------------------------ 10 FOR PLAINTIFFS-APPELLANTS: KEITH L. ALTMAN, Excolo Law, 11 PLLC, Southfield, MI 12 13 FOR DEFENDANT-APPELLEE: MARK S. CHEFFO (Rachel 14 Passaretti-Wu, Mara Cusker 15 Gonzalez, Lincoln Davis 16 Wilson, on the brief), Dechert 17 LLP, New York, NY; Michael 18 H. McGinley, Dechert LLP, 19 Philadelphia, PA

20 Appeal from a judgment of the United States District Court for the

21 Southern District of New York (William H. Pauley III, Judge).

22 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

23 AND DECREED that the judgment of the District Court is AFFIRMED.

24 The Plaintiffs-Appellants appeal from the April 9, 2020 judgment of the

25 District Court (Pauley, J.) dismissing their claims under New York law that the

** The Clerk of Court is directed to amend the official caption to conform with the above caption.

2 1 label of a drug manufactured by Defendant-Appellee Pfizer, Inc., Lipitor, does

2 not adequately warn of a risk of type 2 diabetes. We assume the parties’

3 familiarity with the underlying facts and prior record of proceedings, to which

4 we refer only as necessary to explain our decision to affirm.

5 For substantially the reasons stated by the District Court in its April 7, 2020

6 opinion and order, we conclude that the Plaintiffs-Appellants’ state-law failure-

7 to-warn claims are preempted by federal law to the extent that they arose after

8 February 2012, and that they are untimely to the extent that they arose before

9 April 2016. Also for substantially the reasons stated by the District Court, we

10 conclude that leave to amend the complaint is futile.

11 We have considered the Plaintiffs-Appellants’ remaining arguments and

12 conclude that they are without merit. For the foregoing reasons, the judgment of

13 the District Court is AFFIRMED.

14 FOR THE COURT: 15 Catherine O’Hagan Wolfe, Clerk of Court 16

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