Wright v. Insight Pharmaceuticals, LLC et al
Filing
39
OPINION AND ORDER granting 35 Motion for summary judgment. The Clerk shall enter judgment in favor of defendants and against plaintiff. The First Amended Complaint is dismissed with prejudice. The Clerk is further directed to terminate all deadlines and to close the file. Signed by Judge John E. Steele on 9/28/2017. (RKR)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
KARA WRIGHT, as Personal
Representative of Jane Doe
1, a minor child, and Jane
Doe 2, a minor child,
Plaintiff,
v.
Case No:
2:16-cv-547-FtM-99MRM
INSIGHT
PHARMACEUTICALS,
LLC,
a
Delaware
Limited
Liability Company and WALMART
STORES,
INC.,
a
Delaware corporation,
Defendants.
OPINION AND ORDER
This matter comes before the Court on the defendant’s Motion
for Summary Judgment (Doc. #35) filed on August 21, 2017.
Finding
no response, the Court directed plaintiff to file a response or
the motion would be deemed unopposed and summary judgment granted
in favor of defendants if appropriate.
No response was filed, and
the extended time to respond has expired.
I.
Summary
judgment
is
appropriate
only
when
the
Court
is
satisfied that “there is no genuine dispute as to any material
fact and that the movant is entitled to judgment as a matter of
law.”
Fed. R. Civ. P. 56(a).
“An issue of fact is ‘genuine’ if
the record taken as a whole could lead a rational trier of fact to
find for the nonmoving party.”
Baby Buddies, Inc. v. Toys “R” Us,
Inc., 611 F.3d 1308, 1314 (11th Cir. 2010).
A fact is “material”
if it may affect the outcome of the suit under governing law.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
The
motion must be supported by citing to materials in the record, or
or by showing that the nonmoving party cannot produce admissible
evidence.
Fed. R. Civ. P. 56(c)(1).
If a party fails to properly respond, the Court may consider
the facts undisputed and “grant summary judgment if the motion and
supporting materials--including the facts considered undisputed-show that the movant is entitled to it. . . .”
56(e).
Fed. R. Civ. P.
The “complete failure of proof concerning an essential
element of the nonmoving party’s case necessarily renders all other
facts immaterial.”
Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986). In such a case, the moving party is “entitled to a judgment
as a matter of law”, much like a directed verdict under Fed. R.
Civ. P. 50(a).
Id. (citing Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 250 (1986)).
II.
Plaintiff Kara Wright, as personal representative of Jane Doe
1 and Jane Doe 2 (Wright or plaintiff), both minor children,
initiated
her
Complaint
(Doc.
#1)
against
defendants
Insight
Pharmaceuticals, LLC (Insight) and Wal-Mart Stores, Inc. (Wal-
2
Mart) (collectively defendants) on July 8, 2016.
In the operative
First Amended Complaint (Doc. #16) plaintiff seeks damages under
a theory of strict liability (Counts I through III), and also under
a theory of negligence (Counts IV through VI) for an allegedly
defective product.
Defendants filed their Answer, Affirmative
Defenses (Doc. #32) after entry of the Court’s Opinion and Order
(Doc. #31) denying a motion to dismiss based on a statute of
limitations argument.
In the First Amended Complaint, plaintiff alleges that the
product
Gentle
Naturals
Cradle
Cap
Treatment
(product)
was
designed, manufactured, assembled, and inspected by Insight for
treating infant cradle cap.
Plaintiff purchased the product from
the retailer Wal-Mart in its original container and firmly sealed.
Plaintiff
alleges
photosensitive
that
reactions
the
to
minor
the
children
product
suffered
resulting
adverse
from
the
combination of the product on their skin and exposure to sunlight,
and that they have a permanent loss of pigmentation in the affected
areas.
Plaintiff alleges that the product was defective in its
design, manufacture, production, advertising, sale, and warnings
rendering it unsafe for its intended use.
Plaintiff also alleges
as to Insight, defective design with the packaging and labeling of
the product, and a failure to warn.
Plaintiff alleges negligence
by both defendants for presenting a product to the public for a
foreseeable use and with a reasonable foreseeable danger of injury.
3
Plaintiff further alleges negligence on the part of Insight for
the design and manufacturing of the product, and the failure to
warn.
Plaintiff’s disclosure of expert reports was due on August 2,
2017, with defendant’s disclosure due on September 5, 2017.
discovery deadline expires on October 10, 2017.
Declaration
of
Jenny
A.
Mendelsohn
(Doc.
(Doc. #30.)
#36),
counsel
The
By
for
defendants states that plaintiff did not seek any discovery after
serving interrogatories, and failed to disclose any experts by the
deadline to do so.
Plaintiff does not dispute that no expert
report is available.
III.
“In order to hold a manufacturer liable on the theory of
strict
liability
in
tort,
the
user
must
establish
the
manufacturer’s relationship to the product in question, the defect
and unreasonably dangerous condition of the product, and the
existence
of
the
proximate
causal
connection
between
such
condition and the user's injuries or damages.” West v. Caterpillar
Tractor Co., 336 So. 2d 80, 87 (Fla. 1976).
retailer
is
also
defective product.
subject
to
strict
A nonmanufacturing
liability
for
an
alleged
Visnoski v. J.C. Penney Co., 477 So. 2d 29, 29
(Fla. 2d DCA 1985); Faddish v. Buffalo Pumps, 881 F. Supp. 2d 1361,
1370 (S.D. Fla. 2012).
For a claim based on a theory of negligent
design, manufacturing or the failure to provide adequate warnings,
4
plaintiff must show that defendants owed a duty of care, that was
breached, and the breach was a proximate cause of plaintiff’s
injury,
and
mostly
importantly
that
defective or unreasonably dangerous.
the
product
itself
was
Cooper v. Old Williamsburg
Candle Corp., 653 F. Supp. 2d 1220, 1226 (M.D. Fla. 2009).
For both the strict liability claims and the negligence
claims, plaintiff bears the burden of proof to show that the
product was defective, Vela v. Sears Holding Corp., No. 10-CV24011, 2011 WL 4737056, at *3 (S.D. Fla. Oct. 6, 2011), and a
defect must be proven by expert testimony, Savage v. Danek Med.,
Inc., 31 F. Supp. 2d 980, 983 (M.D. Fla.), aff'd, 202 F.3d 288
(11th Cir. 1999); Payne v. C.R. Bard, Inc., No. 6:11-CV-1582-ORL37, 2014 WL 1887297, at *2 (M.D. Fla. May 12, 2014), aff'd, 606 F.
App'x 940 (11th Cir. 2015).
Without a sufficient showing of a
particular element, summary judgment is properly entered against
a nonmoving plaintiff.
Rink v. Cheminova, Inc., 400 F.3d 1286,
1295 (11th Cir. 2005).
In this case, plaintiff presented no evidence to support her
burden as to any elements by failing to respond and failing to
timely disclose an expert.
Without any expert testimony or the
potential for expert testimony at trial, the Court must grant
summary judgment in favor of defendants.
Accordingly, it is now
ORDERED:
5
1.
Defendant’s Motion for Summary Judgment (Doc. #35) is
GRANTED.
2.
The Clerk shall enter judgment in favor of defendants and
against plaintiff.
prejudice.
The First Amended Complaint is dismissed with
The Clerk is further directed to terminate all pending
motions and deadlines as moot, and close the file.
DONE AND ORDERED at Fort Myers, Florida, this
September, 2017.
Copies:
Counsel of record
6
28th
day of
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