Viramontes, et al v. Pfizer Inc.

Filing 21

ORDER signed by Magistrate Judge Allison Claire on 11/09/15 ORDERING that plaintiff is to file a response to defendant's 20 Objections by 11/24/15. Failure to comply with this order may result in a recommendation that this action be dismissed with prejudice based upon the statute of limitations. (Benson, A)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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SHARON E. VIRAMONTES, et al.,

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No. 2:15-cv-1754 TLN AC (PS)

Plaintiffs,
v.

ORDER

PFIZER, INC.,
Defendant.

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The defendant has timely filed Objections (ECF No. 20) to the undersigned’s September

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29, 2015 Findings and Recommendations (ECF No. 19). Plaintiff has not filed a response to

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defendant’s Objections. However, because defendant has raised a substantial question regarding

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the Findings and Recommendations, plaintiff will be ordered to file a response.

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Specifically, defendant now directs the court’s attention – for the first time – to the “proof

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of service” attached to plaintiff’s Exhibit B of her own Request for Judicial Notice (ECF No. 13

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at 42). That document appears to show that plaintiff was served with the November 21, 2012

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report by Dr. Ira Fishman, more than two years before July 17, 2015, when plaintiff filed the

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current action in state court.

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Dr. Fishman’s report states, among other things:
Certainly, there is no medical certainty here but the facts are
sufficient, buttressed by the medical literature, to conclude with
reasonable
medical
probability
that
the
applicant’s
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dermatomyositis was linked to chronic industrial use of Celebrex.

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ECF No. 13 at 28 (emphasis added). This would appear to contradict plaintiff’s allegation that

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she first became aware of the possible connection between her dermatomyositis and her ingestion

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of Celebrex no sooner than several months later, on July 18, 2013. Indeed, plaintiff alleges that

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the statute of limitations began to run when she first became aware of the connection on July 18,

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2013, based upon a report of that date by the same Dr. Fishman, making a nearly identical

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statement:

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“With regard to Ms. Viramontes specific case, the clinical evidence
is detailed and compelling and . . . the facts are sufficient,
buttressed by the medical literature, to conclude with reasonable
medical probability that the applicant’s Dermatomyositis was
linked to chronic industrial use of Celebrex.”

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Complaint (ECF No. 1-1) (emphasis added) at p. 10:17-23 (quoting Dr. Fishman’s report).

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Therefore, IT IS HEREBY ORDERED that plaintiff file a response to defendant’s

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Objections (ECF No. 20), no later than November 24, 2015. Failure to comply with this order

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may result in a recommendation that this action be dismissed with prejudice based upon the

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statute of limitations.

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DATED: November 9, 2015

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