Full opinion text
ORDER TERRY L. WOOTEN, District Judge. This action was removed to this Court from the Court of Common Pleas for Horry County, South Carolina on January 30, 2009. (Doc. # 1). The plaintiffs, William R. Fisher and Silbray N. Fisher (“plaintiffs”), who are husband and wife, allege William Fisher (“Mr. Fisher”) suffers from Tardive Dyskinesia caused by his long-term use of the prescription drug metoclopramide. They assert causes of action against his treating physician, Dr. Mark F. Pelstring, who prescribed metoclopramide to him. They also assert causes of action against Wyeth, Inc. and Schwarz, Inc., who they allege manufactured metoclopramide under the brand-name Reglan and in its generic form. On July 28, 2010, 2010 WL 2998474, this Court granted summary judgment to Wyeth and Schwarz and they were dismissed from this action. (Doc. # 89). In addition to Wyeth and Schwarz, the plaintiffs bring causes of action against PLIVA USA, Inc. (“PLIVA”), who they allege manufactured the generic metoclopramide ingested by Mr. Fisher. Before the Court are several motions filed by the plaintiffs and PLIVA. On December 10, 2010, PLIVA filed a motion to dismiss based on federal preemption (Doc. # 104) and a motion for summary judgment (Doc. # 112). The plaintiffs filed responses to these motions (Docs. 130, 134), to which PLIVA submitted replies (Docs. 146, 147). On April 19, 2011, the plaintiffs filed a motion for partial summary judgment. (Doc. # 160). PLI-VA filed a response to this motion (Doc. # 174), to which the plaintiffs submitted a reply (Doc. # 176). PLIVA also filed a surreply to the plaintiffs’ reply (Doc. # 187), and the plaintiffs submitted a response to PLIVA’s surreply (Doc. # 193). In light of the Supreme Court’s decision in PLIVA, Inc. v. Mensing, — U.S. -, 131 S.Ct. 2567, 180 L.Ed.2d 580 (2011), where it considered the issue of federal preemption of state-law failure to warn claims involving generic drug manufacturers, this Court, on July 5, 2011, directed the plaintiffs and PLIVA to file supplemental briefing. (Doc. # 180). The parties submitted their supplemental briefs on July 25, 2011. (Docs. 182,183). Also before the Court are PLIVA’s motions to exclude testimony of the following expert witnesses: Suzanne Parisian (Doc. # 106), Philip Seeman (Doc. # 108), and David Ross (Doc. # 110). Additionally, the plaintiffs have filed a motion to preclude Dr. Pelstring from offering any expert testimony or opinion (Doc. # 103) and motions to exclude testimony of the following expert witnesses: Raymond D. Harbison (Doc. # 157), Steven Lamm (Doc. # 158), and James Morrison (Doc. # 159). The Court has considered the applicable law, arguments of counsel, and memoranda submitted. These motions are now ripe for disposition. FACTS The plaintiffs allege that Dr. Pelstring began prescribing metoclopramide to Mr. Fisher on about January 15, 2003 to treat symptoms of acid reflux disease. (Compl. ¶ 41). Dr. Pelstring allegedly continued to prescribe metoclopramide to Mr. Fisher until January 31, 2005. Id. The plaintiffs assert that Mr. Fisher’s long-term use of metoclopramide caused him to develop Tardive Dyskinesia, which is an incurable neurological disorder that can cause involuntary and uncontrollable movements of the head, neck, face, arms, legs, and trunk in addition to grotesque facial grimacing and open-mouthed, uncontrollable tongue movements, tongue thrusting, tongue chewing, and other involuntary movements. (Compl. ¶¶ 32-33). In 2005, Dr. Pelstring referred Mr. Fisher to a neurologist, Dr. Michael McCaffrey, who examined Mr. Fisher on May 25, 2005. Id. ¶¶ 42-43. Although the plaintiffs assert in the complaint that during this examination Mr. Fisher was diagnosed with drug-induced Tardive Dyskinesia, id. ¶ 43, the plaintiffs now argue that this date is incorrect. Instead, they allege in their response to PLIVA’s motion for summary judgment that Dr. McCaffrey diagnosed Tardive Dyskinesia on July 13, 2005, but later retracted this diagnosis and there was considerable confusion regarding Dr. McCaffrey’s diagnosis. They assert that Mr. Fisher was first definitively diagnosed with Tardive Dyskinesia by Dr. David Ross on May 15, 2008. Because the plaintiffs are asserting a medical malpractice claim against Dr. Pelstring and in accordance with South Carolina Code Annotated § 15-79-125, the plaintiffs filed a Notice of Intent to File Suit on May 22, 2008, in the Court of Common Pleas for Horry County, South Carolina before initiating this lawsuit. They initiated this lawsuit by filing their complaint in the same court on January 16, 2009. The lawsuit was then removed to this Court on January 30, 2009. (Doc. # 1). In addition to their medical malpractice claim against Dr. Pelstring, the plaintiffs assert causes of action for strict products liability based on warning defects, manufacturing defects, and design defects; breach of express warranty; breach of implied warranties; negligence; negligent misrepresentation; breach of undertaking a special duty; fraud and misrepresentation; constructive fraud; fraud by concealment; violation of the South Carolina Unfair Trade Practices Act; intentional infliction of emotional distress; and loss of consortium. DISCUSSION I. Motion to Dismiss Based on Federal Preemption PLIVA argues in its motion to dismiss that federal law preempts the plaintiffs’ state law claims. Federal law imposes complex drug labeling requirements, which involve proof by a manufacturer seeking federal approval to market a new drug that the drug is safe and effective and that the proposed label is accurate and adequate, a process which involves costly and lengthy clinical testing. PLIVA, Inc. v. Mensing, — U.S. -, 131 S.Ct. 2567, 2574, 180 L.Ed.2d 580 (2011) (“Mensing ”). In 1984, Congress enacted the Drug Price Competition and Patent Term Restoration Act, 98 Stat. 1585, commonly called the Hatch-Waxman Amendments. Id. This law allowed “generic drugs” to “gain FDA approval simply by showing equivalence to a reference listed drug that has already been approved by the FDA,” thereby allowing inexpensive development of generic drugs. Id. “A generic drug application must also ‘show that the [safety and efficacy] labeling proposed ... is the same as the labeling approved for the [brand-name] drug.’ ” Id. (quoting 21 U.S.C. § 355(j)(2)(A)(v)) (alterations and omission in original). Thus, “brand-name and generic drug manufacturers have different federal drug labeling duties.” Id. “A brand-name manufacturer seeking new drug approval is responsible for the accuracy and adequacy of its label.” Id. On the other hand, a generic drug manufacturer “is responsible for ensuring that its warning label is the same as the brand name’s.” Id. At issue in the Supreme Court’s decision in PLIVA, Inc. v. Mensing and also at issue in this case is “whether, and to what extent, generic drug manufacturers may change their labels after initial FDA approval.” Id. The plaintiffs “contend that PLIVA failed to adequately warn consumers and physicians of a far greater risk of developing tardive dyskinesia than suggested by its product label, and that PLIVA breached its obligation to assess the risks associated with metoclopramide exposure.” Pl.’s Resp. to PLIVA’s Mot. to Dismiss, p. 3 (Doc. # 134). PLIVA argues in its motion to dismiss that the plaintiffs’ state law claims are preempted by federal law because they “place generic drug manufacturers in the untenable position of choosing between state and federal law. If a manufacturer complies with federal law governing generic drugs it can be held liable under state law for not using warnings different from the branded drug counterpart. If, to avoid liability under state law, a generic drug manufacturer changes the warnings, it will violate federal law, rendering its product misbranded.” Mem. in Support of PLIVA’s Mot. to Dismiss, p. 2 (Doc. # 104, attach. 1). In response, the plaintiffs state they “do not contend that PLIVA should have unilaterally issued a new and different warning. Rather, [they] maintain that PLIVA should have notified the FDA of the risks associated with metoclopramide and requested that all manufacturers of metoclopramide/Reglan be required to update its labels to properly reflect current medical knowledge.” Pl.’s Resp. to PLIVA’s Mot. to Dismiss, p. 5 (Doc. # 134). In Mensing, the Supreme Court ruled on this issue and held that impossibility preemption applies to state tort law claims based on generic drug manufacturers’ failure to provide adequate warning labels for generic metoclopramide. Mensing, 131 S.Ct. at 2572. The Court largely accepted the reasoning advanced by PLIVA, namely that if manufacturers of metoclopramide independently seek to satisfy their state law duties by changing their labels, they violate federal law. Id. at 2577-78. Even assuming federal law imposes a duty on a generic drug manufacturer that becomes aware of safety problems to request a strengthened warning, the Court concluded preemption still applies, reasoning that “[t]he question for ‘impossibility’ is whether the private party could independently do under federal law what state law requires of it.” Id. at 2576-77, 2579. The Court held that “when a party cannot satisfy its state duties without the Federal Government’s special permission and assistance, which is dependent on the exercise of judgment by a federal agency, that party cannot independently satisfy those state duties for pre-emption purposes.” Id. at 2580-81. After the Supreme Court issued its opinion in Mensing, this Court directed the parties to submit supplemental briefing. PLIVA asserts that the Mensing decision controls the disposition of this case and means that all of the plaintiffs’ causes of action should be dismissed. However, the plaintiffs argue, based on certain documents they recently learned existed that had been requested in discovery but never produced, that Mensing is not dispositive of this case. They allege these documents show PLIVA did not incorporate into its generic metoclopramide labeling certain FDA-approved warnings added to the labeling for Reglan in 2003 and July 2004. The 2003 addition to the Reglan label includes a warning specific to use of the drug in geriatric patients, which states that persons age 65 and over “may be at greater risk for tardive dyskinesia.” (2004 Reglan Label) (Doc. # 176, attach. 2). The July 2004 changes include the following bolded language under both the “Indications and Usage” and “Dosage and Administration” sections: “Therapy should not exceed 12 weeks in duration.” Id. PLIVA argues in its brief that it brought to the Supreme Court’s attention before oral arguments were held in Mensing that it may not have made the changes that were approved for the Reglan label in July 2004. Because the issue was not raised at oral argument or in the Supreme Court’s decision, PLIVA argues this possible deviation between its labeling for generic metoclopramide and the labeling for Reglan has no impact on the effect of the Mensing decision on this case. Contrary to PLIVA’s assertion, this possible deviation impacts the Court’s analysis of its motion to dismiss. Once the FDA approved the addition of these warnings to the Reglan label, PLIVA has not indicated that any federal law prevented PLIVA from also adding these warnings to its generic metoclopramide products. Indeed, the parties agree that federal law requires a generic drug label to be the same as its brand-name counterpart. Moreover, Mr. Fisher was prescribed metoclopramide during the time period that PLIVA’s labeling for generic metoclopramide may not have included the warnings added to the Reglan labeling in 2008 and 2004. The Court finds that this possible deviation in PLIVA’s label for generic metoclopramide, which both parties indicate exists, is sufficient to conclude the plaintiffs’ claims are not entirely preempted. Therefore, PLIVA’s motion to dismiss (Doc. #104) is DENIED. While the Court does not conclude that the plaintiffs claims are preempted in their entirety, the Court does reach this finding with respect to some of the plaintiffs’ causes of action. These findings with respect to individual claims are discussed in the Court’s analysis of PLIVA’s motion for summary judgment. See infra pp. 818-20, 821-23. II. PLIVA’s Motion for Summary Judgment a. Summary Judgment Standard Pursuant to Federal Rule of Civil Procedure 56(a), the moving party is entitled to summary judgment if the pleadings, responses to discovery, and the record reveal that “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” A genuine dispute of material fact exists “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). As the party seeking summary judgment, the moving party bears the initial responsibility of informing this Court of the basis for its motion. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). This requires that the moving party identify those portions of the “pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,” which it believes demonstrate the absence of a genuine dispute of material fact. Celotex, 477 U.S. at 323, 106 S.Ct. 2548; see also Anderson, 477 U.S. at 249, 106 S.Ct. 2505. Though the moving party bears this initial responsibility, the nonmoving party, must then produce “specific facts showing that there is a genuine issue for trial.” Fed R. Civ. P. 56(e); see Celotex, 477 U.S. at 324, 106 S.Ct. 2548. In satisfying this burden, the nonmoving party must offer more than a mere “scintilla of evidence” that a genuine dispute of material fact exists, Anderson, 477 U.S. at 252, 106 S.Ct. 2505, or that there is “some metaphysical doubt” as to material facts. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Rather, the nonmoving party must produce evidence on which a jury could reasonably find in their favor. See Matsushita, 475 U.S. at 587, 106 S.Ct. 1348. In considering a motion for summary judgment, this Court construes all facts and reasonable inferences in the light most favorable to the nonmoving party. See Miltier v. Beorn, 896 F.2d 848, 852 (4th Cir.1990). Summary judgment is proper “[wjhere the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there [being] no genuine issue for trial.” Matsushita, 475 U.S. at 587, 106 S.Ct. 1348 (1986) (internal quotations omitted). b. Statute of Limitations PLIVA asserts that the plaintiffs’ claims are barred by the applicable statute of limitations, which the parties agree is three years. See S.C.Code Ann. § 15-3-530. The parties also agree that a personal injury action accrues on the date that a “person knew or by the exercise of reasonable diligence should have known that he had a cause of action.” S.C.Code Ann. § 15-3-535. “The exercise of reasonable diligence means simply that an injured party must act with some promptness where the facts and circumstances of an injury would put a person of common knowledge and experience on notice that some right of his has been invaded or that some claim against another party might exist.” Snell v. Columbia Gun Exchange, Inc., 276 S.C. 301, 278 S.E.2d 333, 334 (1981). The “standard as to when the limitations period begins to run is objective rather than subjective.” Burgess v. Am. Cancer Soc’y, S.C. Div., Inc., 300 S.C. 182, 386 S.E.2d 798, 800 (S.C.Ct.App.1989). “The burden of establishing the bar of the statute of limitations rests upon the one interposing it.” Brown v. Finger, 240 S.C. 102, 124 S.E.2d 781, 786 (1962). If the materials facts as to whether the statute of limitations is a bar are in dispute, “the issue becomes one for the jury.” Columbia Venture, LLC v. Dewberry & Davis, LLC, 604 F.3d 824, 829 (4th Cir.2010) (citing Brown, 124 S.E.2d at 786) (applying South Carolina law); see also Garner v. Houck, 312 S.C. 481, 435 S.E.2d 847, 849 (1993) (“If there is conflicting evidence as to whether a claimant knew or should have known he or she had a cause of action, the question is one for the jury.”). For all medical malpractice claims arising after July 1, 2005, South Carolina law requires a plaintiff to file a Notice of Intent to File Suit prior to initiating a civil action. See S.C.Code Ann. § 15-79-125. “Filing the Notice of Intent to File Suit tolls all applicable statutes of limitations.” Id. After the Notice of Intent to File Suit is filed, the parties are directed to participate in mediation. Id. If the matter cannot be resolved through mediation and the plaintiff chooses to initiate a civil action, “[t]he action must be filed: (1) within sixty days after the mediator determines that the mediation is not viable, that an impasse exists, or that the mediation should end; or (2) prior to expiration of the statute of limitations, whichever is later.” Id. The plaintiffs filed their complaint on January 16, 2009. Included in the lawsuit is a medical malpractice claim against Dr. Pelstring, which means South Carolina Code Annotated § 15-79-125 applies if the plaintiffs’ claims arose after July 1, 2005. The plaintiffs filed a Notice of Intent to File Suit on May 22, 2008, meaning all applicable statutes of limitations were tolled at that point if the plaintiffs’ claims arose after July 1, 2005. See S.C.Code Ann. § 15-79-125. If the plaintiffs’ claims accrued before July 1, 2005, the plaintiffs do not receive the benefit of the tolling provision outlined in § 15-79-125, and their claims are time-barred under South Carolina Code Annotated § 15-3-530. Regardless of whether § 15-79-125 applies, the plaintiffs’ claims are also time-barred if the limitations period ran before they filed the Notice of Intent to File Suit. In support of its position, PLIVA refers to deposition testimony by various doctors and to Mr. Fisher’s medical records. On April 11, 2005, Dr. Pelstring indicated in his notes that Mr. Fisher was taken off Reglan nine days ago and after five days began to feel more alert and steadier on his feet. (Southern Medical Associates’ medical records (“SMA R.”), FISHER C000020-21) (Doc. # 112, attach. 6). At his deposition, Dr. Pelstring testified that he observed a tremor during this visit also. (Pelstring Dep. pp. 116-17) (Doc. # 112, attach. 8). According to the complaint, Dr. Pelstring referred Mr. Fisher to a neurologist, Dr. Michael McCaffrey. (Compl. ¶ 42) (Doc. # 1, attach. 3). Dr. McCaffrey examined Mr. Fisher on May 25, 2005. Id. ¶ 43. Prior to Mr. Fisher’s evaluation by Dr. McCaffrey, the Fishers completed a “Patient Data Base” form, dated May 25, 2005, on which Mr. Fisher reported that “after taking Reglan 10 mg since 1-03,” he had uncontrolled shaking and jerking, bad nerves, weakness, weak spells, wobbliness when walking, and depression. (Fisher Dep., Ex. 1) (Doc. # 112, attach. 11). Mr. Fisher also indicated on this form that “taking more Reglan 10 mg” made his problems worse. Id. Relying on Dr. McCaffrey’s deposition testimony and the “Patient Data Base” form, PLIVA argues that the Fishers were on notice at this visit on May 25, 2005, that they had a potential claim against PLIVA. Finally, PLIVA asserts that the plaintiffs judicially admitted their claims accrued at the latest on May 25, 2005, by alleging in their complaint that Dr. McCaffrey diagnosed Mr. Fisher as suffering from drug-induced Tardive Dyskinesia on May 25, 2005. (Compl. ¶ 43) (Doc. # 1, attach. 3). In response, the plaintiffs assert their claims accrued on May 15, 2008, when Dr. David Ross definitively diagnosed Mr. Fisher with Tardive Dyskinesia. Earlier the record reflects that, as the plaintiffs assert, Dr. McCaffrey wrote Tardive Dyskinesia under the heading “Impression” in his notes for his July 13, 2005, exam of Mr. Fisher, which was an indication that his impression was Tardive Dyskinesia had developed. Later, however, Dr. McCaffrey retracted this diagnosis on September 21, 2005. In support of their argument, the plaintiffs refer to the medical records from Mr. Fisher’s visits with Dr. McCaffrey. In his notes for his examination of Mr. Fisher on May 25, 2005, Dr. McCaffrey wrote under the heading “History of Present Illness” that Mr. Fisher started developing abnormal movements and was taken off Reglan, that Mr. Fisher “can develop spontaneous whole body dystonias suggestive of tardive dyskinesia,” and that he “did not see any of these movements while in the office today.” (Strand Regional Specialty Associates medical records (“SRSA R.”), p. 1) (Doc. # 131, attach. 2). Dr. McCaffrey also indicated under the heading “Impression” that Mr. Fisher “may have problems with tardive dyskinesia secondary to Reglan.” Id., p. 2. In his notes for Mr. Fisher’s examination on June 8, 2005, Dr. McCaffrey stated that Mr. Fisher was being seen for follow-up of “ataxia/jerking thought to be secondary to tardive dyskinesia” and that this ataxia/jerking “is more than likely secondary to a mild/moderate case of tardive dyskinesia secondary to Reglan.” Id., p. 3^4. For Mr. Fisher’s examination on July 13, 2005, Dr. McCaffrey noted that Mr. Fisher was being seen in follow-up “for tardive dyskinesia” and that his impression was “tardive dyskinesia.” Id., p. 5-6. However, for Mr. Fisher’s next visit on September 21, 2005, Dr. McCaffrey noted that he had not seen, in his office, “any movements whatsoever to call [Mr. Fisher’s] disorder tardive dyskinesia,” that “it is unclear at this time whether any of [Mr. Fisher’s] symptoms are secondary to Reglan,” and that “all of [Mr. Fisher’s] symptoms at present may be secondary to depression.” Id., p. 7-8. The plaintiffs also cite to deposition testimony by Dr. Pelstring and Ms. Fisher. During his deposition, Dr. Pelstring stated that he did not believe Mr. Fisher had Tardive Dyskinesia or Akathisia at the time he referred Mr. Fisher to a neurologist and that he believed Mr. Fisher’s tremor was related to his anxiety disorder. Pelstring Dep. p. 119-20 (Doc. # 130, attach. 2). Ms. Fisher testified that Dr. McCaffrey did not appear to know what was causing Mr. Fisher’s problems during the May 25, 2005, visit and that he indicated he would run some tests. (Fisher Dep. p. 33) (Doc. # 130, attach. 3). In addition, Ms. Fisher testified that she did not recall Dr. McCaffrey saying during the May 25th visit that Mr. Fisher may have Tardive Dyskinesia but that at a later visit he indicated that Mr. Fisher had Tardive Dyskinesia. Id. p. 33-34. Ms. Fisher also stated there was a lot of confusion with Dr. McCaffrey regarding Mr. Fisher’s diagnosis. Id. p. 52-53. The evidence of record at this stage is similar to that in Gamer v. Houck where the South Carolina Supreme Court held there was a jury question as to when a claim was or should have been discovered because there was “no evidence conclusively showing” the plaintiff knew or should have known outside of the limitations period that he had a cause of action. Garner, 435 S.E.2d at 848-50. PLIVA argues the plaintiffs’ claims accrued on April 11, 2005, when Dr. Pelstring noted Mr. Fisher began to feel better after being taken off metoclopramide and, according to Dr. Pelstring’s deposition testimony, he observed a tremor. However, no conclusive evidence has been presented showing that Dr. Pelstring diagnosed Mr. Fisher as suffering a side effect of metoclopramide. Alternatively, PLIVA asserts, at the latest, that the plaintiffs’ claims accrued on May 25, 2005, when Dr. McCaffrey first examined Mr. Fisher. The “Patient Data Base” form filled out by the Fishers before this examination suggests that the plaintiffs suspected Mr. Fisher was suffering a side effect of metoclopramide. In addition, Dr. McCaffrey’s notes from the May 25, 2005, and the June 8, 2005, visits indicate that Mr. McCaffrey suspected Mr. Fisher may have had Tardive Dyskinesia. Again, however, no conclusive evidence has been presented showing that the Fishers knew Mr. Fisher was suffering a side effect of Reglan, that they suspected the severity of the potential side effect they described on the Patient Data Base form, or that Dr. McCaffrey indicated to them during the May 25th or June 8th visits that Mr. Fisher’s health problems were caused by metoclopramide. As well, notably, on September 21, 2005, Dr. McCaffrey indicated in his notes he saw “no movements whatsoever to call [Mr. Fisher’s] disorder tardive dyskinesia” and that it is “unclear ... whether any of [Mr. Fisher’s] symptoms are secondary to Reglan” or “may be secondary to depression.” Dr. McCaffrey is essentially concluding it is unclear that Reglan caused the plaintiffs’ medical problems. In sum, this Court does not find that the Fishers having only unconfirmed suspicions that Mr. Fisher may be experiencing a side effect of metoclopramide is enough to conclusively start the running of the limitations period on their claims prior to the diagnosis by Dr. Ross on May 15, 2008. Cf. Graniteville Co. v. IH Serv., Inc., 316 S.C. 146, 447 S.E.2d 226, 228 (S.C.Ct.App.1994) (“It would be paradoxical to hold that a person suffering an injury is required to determine the causation of the injury without benefit of expert opinion and then require causation testimony at trial to be limited to expert opinion. When the injury requires an expert to make a determination of the cause of the injury and an expert is retained, this, in and of itself, is evidence of reasonable diligence in determining whether or not the injury is attributable to a wrong inflicted by someone else.”). Therefore, after careful consideration of the arguments of the parties and evidence in the record, the Court concludes there is an issue of fact at this stage of the litigation as to whether the plaintiffs’ claims are timely. If their claims accrued before July 1, 2005, the plaintiffs do not receive the benefit of the tolling provision in South Carolina Code Annotated § 15-79-125, and their claims are time-barred. Viewed in a light most favorable to the plaintiffs and similar to the facts in Gamer, no evidence has been presented to the Court “conclusively showing” that the Fishers knew or by the exercise of reasonable diligence should have known that they had a cause of action against PLIVA prior to July 1, 2005. Garner, 435 S.E.2d at 850. Moreover, much of the case law cited by the parties in their briefs supports the conclusion there is an issue of fact at this stage of the litigation. See Collins v. R.J. Reynolds Tobacco Co., 901 F.Supp. 1038, 1046 (D.S.C.1995) (concluding personal injury action accrued at least by date that decedent was aware of diagnosis of emphysema and that his injury might be related to smoking); Quattlebaum v. Carey Canada, Inc., 685 F.Supp. 939, 940 (D.S.C.1988) (finding statute of limitations began to run on decedent’s personal injury claim on date he received diagnosis of asbestosis or an asbestos-related disease); Hinson v. Owens-Illinois, Inc., 677 F.Supp. 406, 411 (D.S.C.1987) (concluding the statute of limitations began to run, at the very latest, on the date a cat scan positively showed asbestosis). For the reasons stated, PLI-VA’s motion for summary judgment based on the statute of limitations is denied. The plaintiffs have requested an opportunity to amend the allegations in the complaint regarding the date of Mr. Fisher’s diagnosis of Tardive Dyskinesia. The plaintiffs’ request is granted. They shall have twenty (20) days from the filing date of this Order to file an amended complaint. c. Causation 1. Proximate Cause/Learned Intermediary Doctrine PLIVA asserts summary judgment should be granted because the plaintiffs cannot establish proximate cause. The plaintiffs do not dispute that proximate cause is an element of at least some of their claims. See Bray v. Marathon Corp., 356 S.C. 111, 588 S.E.2d 93, 95 (2003) (“A products liability plaintiff must prove the product defect was the proximate cause of the injury sustained.”); Young v. Tide Craft, Inc., 270 S.C. 453, 242 S.E.2d 671, 675 (1978) (holding proximate cause is an “essential element” of negligence, breach of implied warranty, and strict liability theories of recovery); Small v. Pioneer Mach., Inc., 329 S.C. 448, 494 S.E.2d 835, 842 (S.C.Ct.App.1997) (holding proximate cause is an element of strict liability, warranty, and negligence theories of recovery). PLIVA also argues it is entitled to summary judgment based on the learned intermediary doctrine. Under the learned intermediary doctrine, “the manufacturer’s duty to warn extends only to the prescribing physician, who then assumes responsibility for advising the individual patient of risks associated with the drug or device.” Odom v. G.D. Searle & Co., 979 F.2d 1001, 1003 (4th Cir.1992); see also Tarallo v. Searle Pharm., Inc., 704 F.Supp. 653, 659 n. 2 (D.S.C.1988) (“The learned intermediary defense rests on the sufficiency and clarity of warnings given to the trained, licensed physician. If the doctor receives a warning which fully comports with the FDA legal standards, the doctrine prevents recovery by a treated patient against the manufacturer.”). “[T]he physician is called on to act as a ‘learned intermediary’ between the manufacturer and the consumer because he is in the best position to understand the patient’s needs and assess the risks and benefits of a particular course of treatment.” Brooks v. Medtronic, Inc., 750 F.2d 1227, 1231 (4th Cir.1984). As a result, under this doctrine, “the manufacturer cannot be said to have caused the injury if the doctor already knew of the medical risk.” Odom, 979 F.2d at 1003 (citing Stanback v. Parke, Davis & Co. 657 F.2d 642, 645-46 (4th Cir.1981)). Moreover, the Fourth Circuit has declined to create a presumption of causation under South Carolina law where a warning is proven inadequate. Id. Rather the Fourth Circuit has held “ ‘[t]he burden remains on the plaintiff to demonstrate that the additional non-disclosed risk was sufficiently high that it would have changed the treating physician’s decision to prescribe the product for the plaintiff.’ ” Id. (quoting Thomas v. Hoffman-LaRoche, Inc., 949 F.2d 806, 814 (5th Cir.1992)). PLIVA asserts summary judgment should be granted because Dr. Pelstring never read or relied on PLIVA’s metoclopramide warnings and because the plaintiffs cannot show that Dr. Pelstring did not appreciate the risks of metoclopramide or would have acted differently if the package insert contained a different warning. PLI-VA relies heavily on Odom v. G.D. Searle & Co. where the Fourth Circuit applied South Carolina law in affirming a grant of summary judgment to a manufacturer of an intrauterine device (“IUD”). Odom, 979 F.2d at 1001-04. In Odom, the plaintiffs treating physician “testified at length about his independent knowledge of the risk” of pelvic inflammatory disease from the use of an IUD, and “his own estimate of the risk actually exceeded that of’ the plaintiffs expert. Id. at 1003. PLIVA also cites to Dr. Pelstring’s deposition testimony in which he indicates the following: (1) he was aware Tardive Dyskinesia was a possible side effect of metoclopramide and is familiar with its symptoms, Pelstring Dep., pp. 141-43, 15-17 (Doc. # 112, attachs. 7, 8); (2) he read the Physician’s Desk Reference insert for Reglan when it came on the market and was aware of the product and its risks, id. at 139; (3) he issued new prescriptions for Reglan a couple times a month in 2003 or 2004 for different conditions, id. at 22; (4) at the time of his deposition on August 19, 2010, he still issued new prescriptions for Reglan approximately twice a month, id. at 25; (5) he at all times felt he had enough information from the manufacturers about metoclopramide to make decisions about prescribing it, id. at 164; (6) he had never heard of PLIVA before this lawsuit, had never met with a representative of PLIVA, and had never received any literature of any kind from PLIVA, id. at 136; and (7) to the best of his knowledge, he had never seen a PLIVA package insert for metoclopramide or relied on information from PLIVA in making his treatment decisions for Mr. Fisher, id. at 149. In response, the plaintiffs argue it is axiomatic to conclude proximate cause requires proof that either the plaintiffs or Dr. Pelstring read PLIVA’s specific metoclopramide label and that reading the brand-name Reglan label is not enough when PLIVA repeatedly asserts its label has to be the same as the brand-name label. The plaintiffs also argue they can prove proximate cause by demonstrating the chain of events resulting in Mr. Fisher’s injuries would have been interrupted if a proper warning had been provided. They cite to Dr. Pelstring’s deposition testimony that his understanding was that the risk of developing Tardive Dyskinesia as a side effect of metoclopramide was not significant enough to warrant a specific discussion with a patient in all circumstances. Pelstring Dep., pp. 68-70 (Doc. # 130, attach. 2). When questioned about the impact on his decision-making of a statement in the Physician’s Desk Reference in 2003 or 2004 that the risk of a side effect such as Tardive Dyskinesia might be as high as 20 percent, Dr. Pelstring responded that if he was prescribing a medication for the first time and the risk was 20 percent, he would certainly mention the side effect to a patient. Id. at 74. However, if his experience in prescribing the drug over a period of time indicates the risk is much lower than what is stated in the Physician’s Desk Reference, he would balance the 20 percent risk against his own observations. Pelstring Dep., pp. 74-75 (Doc. # 112, attach. 7). Dr. Pelstring testified that he was aware when the FDA issued the Black Box Warning for Reglan/metoclopramide in 2009 because he receives email notices about black box warnings. Pelstring Dep., p. 24 (Doc. # 130, attach. 2). There is not an abundance of case law in South Carolina on proximate cause in prescription drug cases and the learned intermediary doctrine, but Odom is most directly on point. However, Odom is distinguishable from this case because there was lengthy testimony from the treating physician in Odom that he understood the risks associated with using an IUD and his own estimate of the risk of developing pelvic inflammatory disease actually exceeded that of the plaintiff’s expert. PLI-VA has not cited any deposition testimony by Dr. Pelstring where his estimate of the risk of developing Tardive Dyskinesia exceeded that of the plaintiffs’ experts in this case. To the contrary, Dr. Pelstring’s testimony was that his understanding of the risk of developing Tardive Dyskinesia as a side effect was too small to warrant a specific discussion with a patient in all circumstances before prescribing the drug. Furthermore, Dr. Pelstring testified he read the Physician’s Desk Reference insert for Reglan when it came on the market, which indicates he relied to some extent on the labeling for the drug when making treatment decisions. Additionally, in their brief filed in response to this Court’s Order directing supplemental briefing in light of the Mensing decision, the plaintiffs argue that PLIVA did not take sufficient steps to notify prescribing physicians about the changes made to the labeling in 2003 and 2004. PI. Supplemental Br., pp. 2-3 (Doc. # 183). Dr. Pelstring indicates in his deposition testimony that he never received any literature from PLIVA and that he was not aware of a label change in 2004. Pelstring Dep., pp. 68, 136 (Doc. # 112, attachs. 7, 8). Conversely, Dr. Pelstring testified that he was aware when the FDA issued the Black Box Warning for Reglan/metoclopramide in 2009 because he receives email notices regarding black box warnings. Id. at 24. Further, PLIVA may have had avenues available to it to communicate with physicians about the 2003 and 2004 label changes without seeking FDA approval first. In Mensing, the Supreme Court accepted the FDA’s interpretation that generic drug manufacturers may not use “Dear Doctor” letters to send additional warnings to prescribing physicians because such letters are labeling and “must be ‘consistent with and not contrary to [the drug’s] approved ... labeling.’ ” Mensing, 131 S.Ct. at 2576 (quoting 21 C.F.R. § 201.100(d)(1)) (alteration and omission in original); FDA Amicus Brief, pp. 18-19. If PLIVA had made changes to its labeling consistent with the 2003 and 2004 changes to the Reglan labeling, a letter alerting physicians to this change would arguably not be inconsistent with the drug’s approved labeling. Therefore, an issue of fact exists at this time regarding whether PLIVA should have done more when the labeling changes occurred in 2003 and 2004 and if it had done more, whether it would have impacted Dr. Pelstring’s decision about prescribing metoclopramide to Mr. Fisher or his decision about discussing the risk of developing Tardive Dyskinesia with Mr. Fisher. Summary judgment is denied on this basis. 2. General Causation and Specific Causation “Where a medical causal relation issue is not one within the common knowledge of the layman, proximate cause cannot be determined without expert medical testimony.” In re Bausch & Lomb Inc. Contacts Lens Solution Prod. Liab. Litig., 693 F.Supp.2d 515, 518 (D.S.C.2010) (internal quotation marks and citation omitted). “To establish medical causation in a product liability case, a plaintiff must show both general causation and specific causation.” Id. “General causation is whether a substance is capable of causing a particular injury or condition in the general population, while specific causation is whether a substance caused a particular individual’s injury.” Id. (internal quotation marks and citation omitted). “If a plaintiff is not able to establish general causation, it is unnecessary to consider whether the plaintiff can establish specific causation.” Id. (internal quotation marks and citation omitted). PLIVA argues that the testimony of the plaintiffs’ proffered experts on the issues of general and specific causation should be excluded. Federal Rule of Evidence 702 provides that “[i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.” Thus, expert testimony is admissible if (1) the expert is qualified; (2) the evidence is relevant in that it relates to an issue in the case; and (3) the evidence is reliable. See Fed R. Evid. 702; Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 589-91, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). The Supreme Court has set forth the following list of non-exclusive, flexible factors to be used in assessing whether the reasoning or methodology underlying expert testimony is scientifically valid and whether the reasoning or methodology properly can be applied to the facts in issue: (1) whether a theory or technique can and has been tested; (2) whether the theory has been subjected to peer review and publication; (3) a consideration of the known or potential rate of error and the existence and maintenance of standards controlling the technique’s operation; and (4) whether there is “general acceptance” of the theory or technique within the relevant scientific community. Daubert, 509 U.S. at 592-95, 113 S.Ct. 2786. The focus of the Rule 702 analysis is on the “principles and methodology” applied by the expert, not on the conclusions reached. Id. at 595, 113 S.Ct. 2786. The objective of the Court’s gatekeeping role “is to make certain that an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field.” Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999). i. General Causation PLIVA asserts in its motion for summary judgment that the testimony of the plaintiffs’ proffered expert on the issue of general causation, Dr. Philip Seeman, should be excluded. PLIVA also filed a separate motion to exclude Dr. Seeman’s testimony. (Doc. # 108). After careful consideration of the arguments submitted by the parties, the Court does not find at this stage of the proceedings that Dr. See-man should be excluded from offering expert testimony on the issue of general causation. “General causation is established by demonstrating, often through a review of scientific and medical literature, that exposure to a substance can cause a particular disease (e.g., that smoking cigarettes can cause lung cancer).” Mary Sue Henifen et al., Reference Manual on Scientific Evidence 439, 444 (Fed. Jud. Ctr., 2d ed.). The plaintiffs argue and Dr. See-man’s report indicates that his opinions are based on medical literature relating to the issues in this case. Pl.’s Resp. to PLIVA’s Mot. to Exclude Seeman’s Test., pp. 3, 20 (Doc. # 132); Seeman’s Expert Report, pp. 4-7 (Doc. # 132, attach. 3). Additionally, the Court does not conclude at this time that Dr. Seeman’s opinions are inadmissible to the extent they are based on in vitro testing and animal testing. See McClellan v. I-Flow Corp., 710 F.Supp.2d 1092, 1110-11 (D.Or.2010) (“[Defendants cannot credibly argue that the reliance on in vitro and animals studies is scientifically invalid in this case. Whatever inadequacies arise from extrapolation will no doubt be addressed through vigorous cross-examination by defense counsel.”); In re Neurontin Marketing, Sales Practices, & Prod. Liab. Litig., 612 F.Supp.2d 116, 159 (D.Mass.2009) (allowing expert witness that relied primarily on in vitro animal studies where expert’s testimony was also supported by a long trail of literature and where the expert was “an exceptionally well-qualified individual who has applied methods generally accepted in his field”). PLIVA also argues that even if Dr. Seeman’s testimony is admissible, it is entitled to summary judgment because his testimony does not establish that metoclopramide is capable of causing Tardive Dyskinesia in the general sub-population of which Mr. Fisher is a member. However, PLIVA provides no case law to support a finding that general causation requires such a showing. In addition, the case law cited by the parties to set forth the legal standard for general causation provides that it “ ‘is whether a substance is capable of causing a particular injury ... in the general population.’ ” In re Bausch & Lomb, 693 F.Supp.2d at 518 (quoting Knight v. Kirby Inland Marine Inc., 482 F.3d 347, 351 (5th Cir.2007)) (emphasis added). As a result, the Court finds no basis to conclude that general causation requires a showing that metoclopramide is capable of causing Tardive Dyskinesia in the general sub-population of which Mr. Fisher is a member. Therefore, PLIVA’s motion to exclude the testimony of the plaintiffs’ proffered expert on the issue of general causation, Dr. Seeman, (Doc. # 108) is DENIED at this stage of the litigation. The Court also concludes that PLIVA is not entitled to summary judgment on the issue of general causation. Finally, PLIVA asserts that Dr. Seemaris expert report which was served on October 20, 2010, should be excluded because the report was filed after the deadline set forth in the scheduling order for serving expert statements. The plaintiffs argue that Dr. Seeman merely updated his report to clarify portions of his testimony in his first deposition on August 24, 2010, by further explaining statements made in his original report, which was submitted on September 8, 2010. Federal Rule of Civil Procedure 26(e) provides that a party which plans to use an expert witness at trial has a duty to supplement information contained in the expert’s Rule 26(a)(2) report and given during the expert’s deposition if the party learns in some material respect the report or testimony is incomplete or incorrect. See also Solaza Tech., LLC v. ArvinMeritor, Inc., 361 F.Supp.2d 797, 805-06 (N.D.Ill.2005) (discussing Rule 26(e) in the context of information given in an expert’s report and deposition). Such supplementations must be disclosed by the time the parties’ pretrial disclosures under Rule 26(a)(3) are due. Fed.R.Civ.P. 26(e)(2). Based on the language in Rule 26(e), this Court does not find that Dr. Seemaris October report should be excluded because it is untimely. The plaintiffs had an ongoing duty to supplement Dr. Seemaris report if it learned that in some material respect the report was incomplete or inaccurate. Moreover, PLIVA was not prejudiced by the supplementation because it had an opportunity to question Dr. Seeman about his October report at his second deposition on October 28, 2010. Therefore, PLIVA’s motion to exclude Dr. Seemaris October expert report is denied. ii. Specific Causation PLIVA asserts it is entitled to summary judgment on the issue of specific causation because the testimony of the plaintiffs’ proffered expert on the subject, Dr. David Ross, should be excluded. PLI-VA has filed a separate motion to exclude Dr. Ross’s testimony. (Doc. # 110). “Differential diagnosis, or differential etiology, is a standard scientific technique of identifying the cause of a medical problem by eliminating the likely causes until the most probable one is isolated.” Westberry v. Gislaved Gummi AB, 178 F.3d 257, 262 (4th Cir.1999) (emphasis added). “A reliable differential diagnosis typically, though not invariably, is performed after physical examinations, the taking of medical histories, and the review of clinical tests, including laboratory tests, and generally is accomplished by determining the possible causes for the patient’s symptoms and then eliminating each of these potential causes until reaching one that cannot be ruled out or determining which of those that cannot be excluded is the most likely.” Id. (emphasis added) (internal quotation marks and citation omitted). “A differential diagnosis that fails to take serious account of other potential causes may be so lacking that it cannot provide a reliable basis for an opinion on causation.” Id. at 265. “However, a medical expert’s causation conclusion should not be excluded because he or she has failed to rule out every possible alternative cause of a plaintiffs illness.” Id. (internal quotation marks and citation omitted). Rather “[t]he alternative causes suggested by a defendant ‘affect the weight that the jury should give the expert’s testimony and not the admissibility of that testimony,’ unless the expert can offer ‘no explanation for why she has concluded [an alternative cause offered by the opposing party] was not the sole cause.’ ” Id. (second alteration in original) (quoting Heller v. Shaw Indus., 167 F.3d 146, 156-57 (3d Cir.1999)). In his expert report, Dr. Ross states that Mr. Fisher has two movement disorders caused by metoelopramide — Tar-dive Dyskinesia and Tardive Akathisia. Ross Report, p. 15 (Doc. # 110, attach. 18). He also states that Mr. Fisher suffered from metoclopramide-induced Parkinson-ism but that the condition has resolved. Id. Additionally, he acknowledges that Mr. Fisher has numerous other medical conditions. Id. at pp. 15-16. After careful consideration of the arguments presented by the parties, this Court does not find at this stage of the proceedings that because Dr. Ross is a neuropsychiatrist and not a neurologist, he is unqualified to give an expert opinion regarding whether Mr. Fisher suffers from Tardive Dyskinesia and Tardive Akathisia. PLIVA also argues that Dr. Ross did not conduct a proper differential diagnosis because he failed to eliminate other possible causes of Mr. Fisher’s conditions documented by Mr. Fisher’s treating physicians. The Court does not find that Dr. Ross’s opinion fails to take into account other possible causes of Mr. Fisher’s medical problems to such an extent that his testimony is inadmissible. PLIVA indicates in its motion that Dr. Ross examined Mr. Fisher and reviewed at least some of his medical records, which is part of the differential diagnosis process. Further, the extent to which Dr. Ross’s conclusions differ from those of Mr. Fisher’s treating physicians is an issue for the jury to consider in weighing the testimony. Thus, the Court does not conclude that Dr. Ross’s opinions should be excluded because they are not the result of an accepted scientific methodology. Therefore, (1) PLIVA’s motion to exclude Dr. Ross’s testimony (Doc. # 110) is DENIED at this stage of the proceedings, and (2) PLIVA is not entitled to summary judgment on the issue of specific causation. d. Design Defect and Manufacturing Defect Claims “In a products liability action, regardless of the theory on which the plaintiff seeks recovery, he must establish three elements: (1) he was injured by the product; (2) the injury occurred because the product was in a defective condition, unreasonably dangerous , to the user; and (3) that the product at the time of the accident was in essentially the same condition as when it left the hands of the defendant.” Small, 494 S.E.2d at 842; see S.C.Code Ann. § 15-73-10. “There are three defects a plaintiff in a products liability lawsuit can allege: 1) a manufacturing defect, 2) a warning defect, and 3) a design defect.” Watson v. Ford Motor Co., 389 S.C. 434, 699 S.E.2d 169, 174 (2010). “When a manufacturing defect claim is made, a plaintiff alleges that a particular product was defectively manufactured.” Id. “When a warning defect claim is made, a plaintiff alleges that he was not adequately warned of dangers inherent to a product.” Id. Finally, “[w]hen a design defect claim is made, a plaintiff alleges that the product at issue was defectively designed, thus causing an entire line of products to be unreasonably dangerous.” Id. In addition to their warning defect claim, the plaintiffs assert claims based on design and manufacturing defects. 1. Design Defect Claim The South Carolina Supreme Court has adopted the risk-utility test for a design defect claim under which a plaintiff must prove an alternative feasible design. Watson, 699 S.E.2d at 178 n. 4; see also Branham v. Ford Motor Co., 390 S.C. 203, 701 S.E.2d 5, 16 (2010) (“In sum, in a product liability design defect action, the plaintiff must present evidence of -a reasonable alternative design.”). The plaintiffs have offered no evidence of a feasible alternative design for metoclopramide. Instead, they argue they should not have to offer a feasible alternative design for metoclopramide but rather should only be required to offer an alternative design for PLIVA’s label and that the FDA has already implemented one in the form of the 2009 Black Box Warning. The plaintiffs provide no authority in support of this argument. The law in South Carolina is that a plaintiff must demonstrate an alternative feasible design in a product liability action based on a design defect. The plaintiffs have not met their burden of producing such proof. Therefore, PLI-VA’s motion for summary judgment is GRANTED as to the plaintiffs’ design defect claim. See also Gerber v. Hoffmann-La Roche, Inc., 392 F.Supp.2d 907, 922 (S.D.Tex.2005) (granting summary judgment to manufacturer on plaintiffs design defect claim in products liability action involving prescription drug Accutane where plaintiff provided no evidence of a safer alternative design). 2. Manufacturing Defect Claim A manufacturing defect claim is an allegation “that a particular product was defectively manufactured.” Watson, 699 S.E.2d at 174. There is not an abundance of case law in South Carolina about how a manufacturing defect differs from other defects. Other courts have defined a manufacturing defect as existing “when a product does not conform to the design standards and blueprints of the manufacturer and the flaw makes the product more dangerous and therefore unfit for its intended or foreseeable uses.” See Gerber, 392 F.Supp.2d at 922 (internal quotation marks and citation omitted) (applying Texas law) (granting summary judgment to a manufacturer on a plaintiffs manufacturing defect claim in a products liability action involving prescription drug Accutane); see also Wheeler v. HO Sports, Inc., 232 F.3d 754, 757 (10th Cir.2000) (applying Oklahoma law) (“A product is defective in manufacture if it deviates in some material way from its design or performance standards. The issue is whether the product was rendered unsafe by an error in the manufacturing process,” which is “often established by showing that a product, as produced, failed to conform with the manufacturer’s specifications.” (internal quotation marks and citations omitted)); Wankier v. Crown Equip. Corp., 353 F.3d 862, 867 (10th Cir.2003) (applying Utah law) (holding that “a manufacturing defect claim, by its nature, involves a deviation from the product’s design specifications, to the injury or potential injury of a user” and that “[t]he gravamen of the tort is not defective design but defective execution of the design”). At this stage of the litigation, the evidence supports a finding that there is an issue of fact as to whether some error in the manufacturing process caused the 2003 or 2004 changes to the Reglan labeling to not be included on some of PLIVA’s metoclopramide labels. Therefore, PLIVA is not entitled to summary judgment on the plaintiffs’ manufacturing defect claim. e. Breach of Express Warranty Claim A seller may create an express warranty in a number of ways, including “[a]ny affirmation of fact or promise, including those on containers or labels, made by the seller to the buyer, whether directly or indirectly, which relates to the goods and becomes part of the basis of the bargain.” S.C.Code Ann. § 36-2-313(1). In addition, “[a]ny description of the goods which is made part of the basis of the bargain creates an express warranty that the goods shall conform to the description.” Id. In order to establish a breach of an express warranty, a plaintiff must show “the existence of the warranty, its breach by the failure of the goods to conform to the warranted description, and damages proximately caused by the breach.” First State Sav. & Loan v. Phelps, 299 S.C. 441, 885 S.E.2d 821, 825 (1989). The plaintiffs contend that PLIVA breached the following express warranty appearing on its label for metoclopramide: “Extrapyramidal symptoms, manifested primarily as acute dystonic reactions, occur in approximately 1 in 500 patients treated with the usual adult dosages of 80 to 40 mg/day of metoclopramide.” See Pl.’s Resp. to PLIVA’s Mot. for Summ. J., p. 22 (Doc. # 180); PLIVA’s 2002 Metoclopramide Package Insert (Doc. # 180, attach. 7). Tardive Dyskinesia is considered an extrapyramidal symptom. Additionally, another section of PLIVA’s label states: “Extrapyramidal Reactions (EPS): Acute dystonic reactions, the most common type of EPS associated with metoclopramide, occur in approximately 0.2% of patients (1 in 500) treated with 30 to 40 mg of metoclopramide per day.” PLIVA’s 2002 Metoclopramide Package Insert (Doc. # 130, attach. 7). In light of the 2009 change to metoelopramide label indicating that one published study reported a Tardive Dyskinesia prevalence of 20 percent among patients treated for at least 12 weeks, the plaintiffs assert that PLIVA’s label at the time Mr. Fisher took the drug either misstated the risk of developing Tardive Dyskinesia or misled the reader with regard thereto. The defendants present three arguments as to why the plaintiffs’ claims should be dismissed: (1) their claim is preempted by federal law; (2) they have not identified any express warranty PLIVA made; and (3) they cannot show their damages were proximately caused by a breach of an express warranty because neither Dr. Pelstring nor the Fishers ever saw or read PLI-VA’s labeling for metoclopramide. As for PLIVA’s second argument, the plaintiffs have identified an affirmation of fact or promise relating to the goods. PLIVA has not presented any argument or authority as to why the statements identified above should not be treated as an express warranty. The next question before the Court is whether the plaintiffs’ claim is preempted by federal law or, in other words, whether federal law directly conflicts with state law. See Mensing, 131 S.Ct. at 2577. “[S]tate and federal law conflict where it is ‘impossible for a private party to comply with both state and federal requirements.’ ” Id. (quoting Freightliner Corp. v. Myrick, 514 U.S. 280, 287, 115 S.Ct. 1483, 131 L.Ed.2d 385 (1995)). In Mensing, the Supreme Court held that federal law preempts “state tort-law claims based on certain drug manufacturers’ alleged failure to provide adequate warning labels for generic metoclopramide.” Id. at 2572. Further, the Court reached this conclusion assuming that federal law requires generic drug manufacturers to seek the FDA’s assistance in convincing the brand-name manufacturer to change its label so that generic drug manufacturers can do so as well. Id. at 2577. In reaching its decision, the Court reasoned “it is enough to hold that when a party cannot satisfy its state duties without the Federal Government’s special permission and assistance, which is dependent on the exercise of judgment by a federal agency, that party cannot independently satisfy those state duties for pre-emption purposes.” Id. at 2580-81. This Court finds that the same reasoning applies to the plaintiffs’ breach of express warranty claim. State law imposes an obligation on sellers not to sell goods that fail to conform with affirmations of fact or promise made by the sellers with respect to the goods sold. Assuming the express warranty identified by the plaintiffs in this case is inaccurate, PLIVA would have to alter or omit the language at issue to avoid breaching its obligation under state law. However, the plaintiffs have not identified any mechanism by which PLIVA could have independently changed the express warranty they allege was breached without first seeking the federal government’s special permission and assistance. See id. at 2575-76 (accepting the FDA’s interpretation of its regulations that a generic drug manufacturers may neither make use of the “changes-being-effected” process to change their labels in a manner that is inconsistent with the brand-name label nor issue additional warnings through “Dear Doctor” letters sent to prescribing physicians). If PLIVA unilaterally changed its label to satisfy its state law obligations without a corresponding change in the brand-name label, it would violate federal law under the Mensing analysis. Without a mechanism by which PLIVA could independently change the language that allegedly created an express warranty, the plaintiffs’ breach of express warranty claim is preempted. Therefore, PLIVA’s motion for summary judgment is GRANTED as to the plaintiffs’ breach of express warranty claim. f. Breach of Implied Warranty of Merchantability PLIVA seeks summary judgment on the plaintiffs’ claim that PLIVA breached the implied warranty of merchantability. “Unless excluded or modified ..., a warranty that the goods shall be merchantable is implied in a contract for their sale if the seller is a merchant with respect to goods of that kind.” S.C.Code Ann. § 36-2-314(1). South Carolina law sets forth several requirements that must be met for goods to be merchantable. See S.C.Code Ann. § 36-2-314(2) For purposes of the plaintiffs’ claim, the onl