Enery Fernandez-Pineiro v. Bausch & Lomb, Inc.

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 2:06-cv-02702-DCN Copies to all parties and the district court/agency. [998579002].. [10-1566, 10-1599, 10-1601, 10-1634]

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Date Filed: 04/29/2011

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 10-1566

ENERY FERNANDEZ-PINEIRO, et al.,
Plaintiffs - Appellants,
v.
BAUSCH & LOMB, INC.,
Defendant - Appellee.

No. 10-1599

In Re:
BAUSCH & LOMB INCORPORATED CONTACT LENS SOLUTION
PRODUCTS LIABILITY LITIGATION; SPECIAL MASTER DANIEL CAPRA.
-----------------------------SAMUEL CRUZ DE JESUS; EDUARDO RODRIGUEZ; MARIA T. BURGOS;
IRIS AQUILES RAMOS,
Plaintiffs – Appellants,
and
EVA I. GARCIA; SHIRLEY MELENDEZ RIVERA; ELIZABETH MENDEZ
SOTO; ZENAIDA LOPEZ ORTIZ; NILSA RIVERA, on her own behalf
and in representation of her minor daughter Marnie N.
Sanchez Rivera,
Plaintiffs,
v.

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BAUSCH & LOMB, INC.,
Defendant – Appellee,
and
INSURANCE COMPANY ABC,
Defendant.

No. 10-1601

In Re:
BAUSCH & LOMB INCORPORATED CONTACT LENS SOLUTION
PRODUCTS LIABILITY LITIGATION; SPECIAL MASTER DANIEL CAPRA.
-----------------------------RUDOLPH V. DECLET-FLORES; MARIELI TIRADO-LOPEZ;
PARTNERSHIP DECLET-TIRADO; HECTOR MENDEZ,

CONJUGAL

Plaintiffs – Appellants,
v.
BAUSCH & LOMB, INC.,
Defendant – Appellee,
and
INSURANCE COMPANY ABC,
Defendant.

No. 10-1634

In Re:
BAUSCH & LOMB INCORPORATED CONTACT LENS SOLUTION
PRODUCTS LIABILITY LITIGATION; SPECIAL MASTER DANIEL CAPRA.
------------------------------

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NOEMI CORTES-IRIZARRY,
Plaintiff – Appellant,
v.
BAUSCH & LOMB, INC.,
Defendant - Appellee.

Appeals from the United States District Court for the District
of South Carolina, at Charleston.
David C. Norton, Chief
District Judge. (2:06-cv-02702-DCN; 2:06-cv-03273-DCN; 2:06-cv03272-DCN; 2:06-cv-03477-DCN; 2:06-mn-77777-DCN)

Submitted:

April 18, 2011

Decided:

April 29, 2011

Before MOTZ, DUNCAN, and AGEE, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Eric Quetglas-Jordan, QUETGLAS LAW OFFICE, San Juan, Puerto
Rico; E. Kirk Wood, Jr., WOOD LAW FIRM, L.L.C., Birmingham,
Alabama; John E. Mudd, LAW OFFICES OF JOHN E. MUDD, San Juan,
Puerto Rico; Emilio F. Soler, SOLER & SOLER, San Juan, Puerto
Rico, for Appellants.
Marie S. Woodbury, Eric M. Anielak,
SHOOK, HARDY & BACON, L.L.P., Kansas City, Missouri; Michael T.
Cole,
William
C.
Wood,
Jr.,
NELSON,
MULLINS,
RILEY
&
SCARBOROUGH, L.L.P., Charleston, South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
In
Pineiro,

these

Samuel

consolidated

Cruz

de

appeals,

Jesus,

and

Enery

Rudolph

Fernandez-

Declet-Flores

(collectively “Summary Judgment Appellants”) appeal the district
court’s judgment granting summary judgment in favor of Bausch &
Lomb, Inc. (“Bausch & Lomb”) on their products liability claims,
and Noemi Cortés-Irizarry appeals the court’s judgment denying
her Fed. R. Civ. P. 59(e) motion to alter or amend.
Bausch

&

Lomb

manufactured

the

We affirm.

multipurpose

contact

lens solution ReNu MoistureLoc (“MoistureLoc”) for use in the
daily

cleaning

and

disinfection

of

certain

contact

lenses.

Pursuant to FDA standards, Bausch & Lomb tested MoistureLoc and
believed that it was effective in killing the microorganisms
that cause eye infections.

In 2006, nearly two years after

Bausch & Lomb began marketing MoistureLoc in the United States,
outbreaks of Fusarium keratitis, a fungal eye infection, were
reported

among

investigation

MoistureLoc

began

an

In

Centers

for

between

Lomb

Fusarium keratitis and withdrew MoistureLoc from stores.
the

connection

&

and

2006,

the

Bausch

MoistureLoc

late

into

users.

Disease

Control

(“CDC”)

and

FDA

published findings indicating that users of MoistureLoc were at
an increased risk for developing Fusarium keratitis.
Following the FDA and CDC reports, and Bausch & Lomb’s
decision

to

remove

MoistureLoc
4

from

the

market,

users

of

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MoistureLoc instituted products liability actions against Bausch
& Lomb in courts around the country.

Suits (including those

commenced by the Appellants in this action) that were commenced
in or removed to federal court were consolidated for pre-trial
proceedings in South Carolina district court by order of the
Judicial Panel on Multidistrict Litigation.
The plaintiffs in the district court proceedings were
made up of two groups: those who had suffered from Fusarium
keratitis, and those who had suffered from other eye infections
not related to the Fusarium strain.
those

plaintiffs

who

alleged

Bausch & Lomb contends that

they

had

suffered

non-Fusarium

infections could not demonstrate that their use of MoistureLoc
caused the infections.

After a hearing conducted pursuant to

Fed. R. Evid. 702 and Daubert v. Merrell Dow Pharmaceuticals,
Inc., 509 U.S. 579, 592 (1993), the district court excluded as
unreliable the only causation evidence the plaintiffs had put
forth on their non-Fusarium claims.

Bausch & Lomb moved for

summary judgment against the non-Fusarium plaintiffs, and the
court granted the motion.
After

summary

judgment

was

granted,

Cortés-Irizarry

moved, pursuant to Fed. R. Civ. P. 59(e), to alter or amend the
judgment or to reconsider.

Cortés-Irizarry claimed, for the

first time, that she had medical evidence to support a claim
that

she

suffered

from

Fusarium
5

keratitis.

Cortés-Irizarry

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attached to her motion a report in support of her claim by Dr.
Carmen

Santos.

The

report

suggested

that

Cortés-Irizarry’s

illness may be related to the Fusarium bacteria.

The court,

however, denied the motion on the grounds that the report was
available prior to the hearing on summary judgment and CortésIrizarry did not present it to the court at that time.

This

appeal followed.

I.

Summary Judgment (Nos. 10-1566/1599/1601)

This court reviews de novo a district court’s order
granting summary judgment and views the facts in the light most
favorable to the nonmoving party.
556

F.3d

165,

167

Rowzie v. Allstate Ins. Co.,

(4th Cir. 2009).

Summary

judgment

is

appropriate when no genuine issue of material fact exists and
the moving party “is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a).
“a

reasonable

jury

Summary judgment will be granted unless

could

return

party” on the evidence presented.

a

verdict

for

the

nonmoving

Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 248 (1986).

a.

Failure to Warn Negligence

Summary Judgment Appellants first claim that the court
either misconstrued or ignored their failure to warn negligence
claim.

Under Puerto Rican law, which the parties agree applies
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to the substantive issues adjudicated on summary judgment, to
satisfy the elements of a failure to warn claim, the plaintiff
must prove “(1) the manufacturer knew, or should have known of
the risk inherent in the product; (2) there were no warnings or
instructions, or those provided were inadequate; (3) the absence
of

warnings

made

the

product

inherently

dangerous;

(4)

the

absence of adequate warnings or instructions was the proximate
cause

of

Tobacco

plaintiff's
Co.,

348

injury.”

F.3d

Cruz-Vargas

271,

276

v.

R.J.

(1st Cir. 2003)

Reynolds
(internal

citations omitted).
Summary

Judgment

Appellants

argue

that

the

district

court erred by imposing a requirement that they offer proof of a
products defect in order to satisfy the elements of negligent
failure to warn.

They claim that the district court conflated

the elements of strict liability failure to warn with negligent
failure to warn, and that under Puerto Rican law, they have
offered sufficient evidence to survive summary judgment.

They

claim that they have presented a valid claim that Bausch & Lomb
would still be liable due to its failure to warn plaintiffs that
they could suffer eye infections notwithstanding their use of
MoistureLoc, even in the absence of a product defect.
We have reviewed the record, and conclude that their
claim is without merit.

Even if Puerto Rican law supports their

claim, the record is devoid of any evidence to survive a motion
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for

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summary

Date Filed: 04/29/2011

judgment.

To

the

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extent

that

Summary

Judgment

Appellants properly pled and preserved this cause of action,
they have adduced no evidence to support it.

See Celotex Corp.

v. Catrett, 477 U.S. 317, 322-23 (1986) (no genuine issue of
material fact where the nonmoving party makes a complete failure
of

proof

concerning

an

essential

element

of

the

nonmoving

party’s case).

b.

Causation

Summary
district
causation

court

Judgment
erred

in

the

laws

where

requirement.

Appellants
imposing
of

next

a

Puerto

argue

requirement
Rico

that
of

recognize

the

general
no

such

They argue that Puerto Rican courts simply reject

the concept of general causation, and instead, focus on whether
the plaintiffs were able to adduce evidence of “adequate cause.”
“Adequate cause, parallel to proximate cause, is that which, in
light

of

general

experience,

ordinarily

produces

the

damages

suffered. In other words, that which in the ordinary and normal
course

of

events

would

plaintiffs’ damages.”

have

resulted

in

the

Perez v. Hyundai Motor Co.

occurrence

of

440 F. Supp.

2d 57, 73-74 (D.P.R. 2006).
We

find

the

distinction

Summary

Judgment

Appellants

attempt to draw between adequate cause and general causation
unpersuasive.

Under either standard, the Plaintiffs must prove
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that a product defect in MoistureLoc caused their injuries.
the

Daubert

hearing,

the

district

court

that claim for non-Fusarium plaintiffs.

essentially

At

rejected

See In re Bausch & Lomb

Inc., Contact Lens Solution Prods. Liab. Litig., No. 2:06-MN77777-DCN (D.S.C. Aug. 26, 2009).

In addition, Fed. R. Evid.

702

to

allows

reliable.
expert

expert

testimony

Summary

testimony

Judgment

prior

to

only

the

Appellants
summary

MoistureLoc caused their injuries.

extent
adduced

judgment

that
no

it

is

reliable

showing

that

Accordingly, we decline to

disturb the district court’s grant of summary judgment.

II.

Rule 59(e) Motion (No. 10-1634)

Cortés-Irizarry

appeals

the

district

court’s

order

denying her Fed. R. Civ. P. 59(e) motion to alter or amend the
order granting summary judgment.

“This court reviews the denial

of a Rule 59(e) motion under the deferential abuse of discretion
Robinson v. Wix Filtration Corp., 599 F.3d 403, 407

standard.”

(4th Cir. 2010).
Rule

59(e),

a

To
movant

demonstrate
has

to

entitlement

demonstrate

to

(1)

relief

an

under

intervening

change in controlling law; (2) new evidence not available at
trial; or (3) that there has been a clear error of law or a
manifest injustice. Pac. Ins. Co. v. Am. Nat’l Fire Ins. Co.,
148

F.3d

396,

403

(4th

Cir.

1998).

9

Measured

against

these

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requirements, the district court’s denial of Cortés-Irizarry’s
Rule 59(e) motion easily survives appellate scrutiny.
While Rule 59 “permits a district court to correct its
own errors, sparing the parties and the appellate courts the
burden

of

unnecessary

appellate

proceedings,”

motions

under

that rule may not be used “to raise arguments which could have
been

raised

prior

(citing

cases).

medical

expert

to
The

report

the

issuance

record
was

of

reveals

dated

the
that

September

judgment[.]”

Id.

Cortés-Irizarry’s
2009;

nearly

four

months before the hearing on Bausch & Lomb’s summary judgment
motion.

Cortés-Irizarry did not file a separate response to the

motion for summary judgment.

Rather, she relied on the general

response from the Plaintiff’s Steering Committee.

In her brief

on appeal, Cortés-Irizarry states that she relied on the general
response because she deemed it to be “a legally comprehensive
document.”

This

misjudgment,

which

caused

her

to

fail

to

provide relevant evidence to the district court prior to summary
judgment, was not adequate justification to permit her to reopen
her case.

Accordingly, we conclude that the district court did

not abuse its discretion in denying Cortés-Irizarry’s Rule 59(e)
motion.
We
court.
legal

therefore

affirm

the

judgment

of

the

district

We dispense with oral argument because the facts and
contentions

are

adequately
10

presented

in

the

materials

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before

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the

court

Date Filed: 04/29/2011

and

argument

would

Page: 11 of 11

not

aid

the

decisional

process.
AFFIRMED

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