Simjian et al v. Bayer Corp

Filing 66

RULING AND ORDER granting 64 Motion for Summary Judgment. Signed by Judge Robert N. Chatigny on 4/9/12. (Glynn, T.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
CAROL SIMJIAN,
Plaintiff,

:
:

v.

:

BAYER CORPORATION,

:

Defendant.

Case No. 3:10-CV-1263(RNC)

:
RULING AND ORDER

This is a products liability case involving Avelox, an FDAapproved prescription antibiotic used to treat bacterial
infections.

The complaint alleges that plaintiff

Carol Simjian sustained a rotator-cuff tear and pain in an
Achilles tendon due to ingestion of Avelox.

Defendant Bayer

Corporation has moved for summary judgment on the ground that
plaintiff lacks expert testimony to sustain her burden of proving
that Avelox can cause tendon tears and pain.

In support of its

motion for summary judgment, defendant has filed a Local Rule
56(a)(1) Statement in which it states: “There is no expert
opinion evidence in the record or that may be presented by
plaintiff at trial that Avelox can cause tendon-related injury.”
Plaintiff has not responded to the motion.
Under Federal Rule of Civil Procedure 56, summary judgment
may be granted when there is no genuine issue of material fact
and the moving party is entitled to judgment as a matter of law.
A defendant in a products liability may be entitled to judgment

as a matter of law when the plaintiff lacks admissible expert
testimony on the issue of causation.

See Fane v. Zimmer, 927

F.2d 124, 131 (2d Cir. 1991)(affirming directed verdict for
medical device manufacturer).

In a previous ruling in this case,

defendant’s motion to exclude the testimony of plaintiff’s expert
witness on medical causation was granted.

The Court ruled that

plaintiff’s proffered expert is not qualified to provide expert
testimony regarding a causal link between Avelox and tendon
injury.
Plaintiff’s failure to respond to the motion for summary
judgment does not itself provide a basis for granting the motion.
In the absence of opposition, however, defendant’s statement,
quoted above, that plaintiff lacks expert testimony on the issue
of causation is deemed to be true.

It is undisputed that without

such testimony, plaintiff cannot prove her case.

Summary

judgment is therefore proper.
Accordingly, the defendant’s motion for summary judgment is
hereby granted (doc. 64).

The Clerk will enter judgment in favor

of the defendant dismissing the complaint.
So ordered this 9th day of April 2012.

__________/s/ RNC____________
Robert N. Chatigny
United States District Judge

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