Rice et al v. Genentech, Inc.

Filing 75

ORDER granting 65 Motion for Summary Judgment. Signed by Judge Thomas W. Thrash, Jr on 1/23/12. (dr)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
CHARLES C. RICE, JR., et al.,
Plaintiffs,
v.

CIVIL ACTION FILE
NO. 1:10-CV-3631-TWT

GENENTECH, INC.,
Defendant.

ORDER

This is a pro se products liability case. It is before the Court on the Defendant’s
Motion for Summary Judgment [Doc. 65]. For the reasons set forth below, the Court
GRANTS the Defendant’s Motion for Summary Judgment.
I. Background
The Defendant, Genentech, Inc., manufactures Lucentis, a medication approved
by the United States Food and Drug Administration for the treatment of neovascular
age-related macular degeneration. (Def.’s Statement of Undisputed Facts ¶¶ 1-2.)
Macular degeneration frequently causes severe loss of central vision. (Id. at ¶ 3.) The
Plaintiff, Charles Rice, has had macular degeneration since 1960. (Id. at ¶ 4.) Also,
since 1993 the Plaintiff has had glaucoma, which may affect peripheral vision. (Id.
at ¶¶ 5-6.) The Plaintiff was diagnosed with high intraocular pressure in 1993, 1994,
T:\ORDERS\10\Rice\msjtwt.wpd

and on March 12, 2007. (Id. at ¶¶ 7-9.) On June 25, 2007, at age 86, the Plaintiff first
saw Dr. Robert Halpern, who diagnosed the Plaintiff with “end stage macular
degeneration.” (Id. at ¶¶ 10, 13.) The Plaintiff stated on this June 25, 2007 visit that
he did not have much visual acuity. (Id. at ¶ 12.) On July 28, 2008, Dr. Halpern
injected the Plaintiff’s right eye with Lucentis, and he did so for a second time on
August 25, 2008. (Id. at ¶¶ 14, 16.) The Plaintiff next visited Dr. Halpern ten months
later, on June 22, 2009; Dr. Halpern determined during this examination that the
Plaintiff had lost all visual acuity in his right eye. (Id. at ¶¶ 18-19.) This loss of
vision was attributed to intraocular pressure.
On August 20, 2010, the Plaintiff filed the Complaint in the Superior Court of
Fulton County. The Complaint was removed to this Court on November 5, 2010
[Doc. 1]. The Complaint alleges negligence, negligence per se, misrepresentation, and
breach of express and implied warranty. On January 26, 2011, the Court issued a
Scheduling Order directing the Plaintiff to disclose his experts 75 days before the end
of discovery and to make his experts available for deposition 50 days before the close
of discovery. As a result of Genentech’s May 24, 2011 motion to extend discovery
[Doc. 35], and the parties’ June 30, 2011 joint motion to extend discovery [Doc. 41],
the Court directed the Plaintiff to make his experts available for deposition 35 days
before the close of discovery, and extended the close of discovery to September 20,

T:\ORDERS\10\Rice\msjtwt.wpd

-2-

2011 [Doc. 42]. As a result, the Plaintiff was required to disclose his experts by July
7, 2011, and to make his experts available for deposition by August 16, 2011. The
Plaintiff failed to designate or produce an expert until September 13, 2011, one week
before the close of discovery. On September 21, 2011, the Court denied the Plaintiff’s
request that the Court extend the Schedule to allow for this late-designated expert
[Doc. 58]. On October 20, 2011, Genentech filed this Motion for Summary Judgment
[Doc. 65].
II. Motion for Summary Judgment Standard
Summary judgment is appropriate only when the pleadings, depositions, and
affidavits submitted by the parties show that no genuine issue of material fact exists
and that the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c).
The court should view the evidence and any inferences that may be drawn in the light
most favorable to the nonmovant. Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-59
(1970). The party seeking summary judgment must first identify grounds that show
the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S.
317, 323-24 (1986). The burden then shifts to the nonmovant, who must go beyond
the pleadings and present affirmative evidence to show that a genuine issue of material
fact does exist. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257 (1986).
III. Discussion

T:\ORDERS\10\Rice\msjtwt.wpd

-3-

A.

Lesar Affidavit

In his Response to the Defendant’s Motion for Summary Judgment, the Plaintiff
attaches an affidavit of pharmacist Timothy Lesar. The affidavit was signed on
November 3, 2011, after the Defendant had filed its Motion for Summary Judgment.
The Plaintiff was over two months late in naming Mr. Lesar his expert. The Court
denied the Plaintiff’s Motion for Extension of Time on September 21, 2011. If the
Court were to consider Mr. Lesar’s affidavit it would unfairly prejudice Genentech,
which has not had the opportunity to depose the expert or name its own rebuttal
expert. It would also contravene the rules of this Court. See Local Rule N.D. Ga.
26.2(c). Therefore, the Court will not consider the affidavit when deciding this
Motion.
B.

Inadequate Warning and Causation

In order to survive summary judgment on any of the four counts of the
Complaint, the Plaintiff must show that the Defendant failed in its duty to adequately
warn the Plaintiff’s physician of the risks of using Lucentis, and that Lucentis caused
his loss of vision. The Plaintiff fails to raise an issue of fact regarding both the
warning and causation.
Prescription drug manufacturers have a duty to warn the patient’s doctor of the
dangers involved with their product rather than warn the patient directly. McCombs

T:\ORDERS\10\Rice\msjtwt.wpd

-4-

v. Synthes (U.S.A.), 277 Ga. 252, 253 (2003). The Plaintiff alleges that Genentech
failed to adequately warn his doctor of the dangers involved with Lucentis. However,
the Plaintiff offers no expert opinion concluding that the Lucentis labeling information
was inadequate at the time of administration. See, e.g., Ehlis v. Shire Richwood, Inc.,
367 F.3d 1013, 1018 (8th Cir. 2004); Miller v. ALZA Corp., 759 F. Supp. 2d 929, 938
n.10 (S.D. Ohio 2010) (citing “the general rule that, in the case of pharmaceuticals,
‘since the warning is directed to physicians, only they or someone with similar
expertise concerning pharmaceuticals would be qualified to determine whether or not
the warning was adequate.’”).
The Plaintiff also fails to establish that Lucentis caused his remaining vision
loss, which he must do to recover under Georgia law. Grinold v. Farist, 284 Ga. App.
120, 121-22 (2007) (“The plaintiff must introduce evidence which affords a
reasonable basis for the conclusion that it is more likely than not that the conduct of
the defendant was a cause in fact of the result. A mere possibility of such causation
is not enough; and when the matter remains one of pure speculation or conjecture, or
the probabilities are at best evenly balanced, it becomes the duty of the court to grant
summary judgment for the defendant.”). The Plaintiff’s causation argument relies on
the temporal proximity between the use of Lucentis in his right eye and the loss of
vision in his right eye. However, “[t]emporal proximity is generally not a reliable

T:\ORDERS\10\Rice\msjtwt.wpd

-5-

indicator of a causal relationship,” Guinn v. AstraZeneca, 602 F.3d 1245, 1254 (11th
Cir. 2010), and “temporal connection between the two events standing alone is
insufficient to prove causation.” Baker v. Smith and Nephew Richards, Inc., No.
1:97-CV-1233-RWS, 1999 WL 1129650, at *3 (N.D. Ga. Sept. 30, 1999). The
Plaintiff has presented no expert opinion showing that Lucentis caused his harm.
Moreover, the Plaintiff’s own treating physician, Dr. Hubbard, stated that the
“worsening of [the Plaintiff’s] glaucoma may have been completely unrelated to the
Lucentis injection and may have simply been coincidental with the Lucentis
injection.” (Def.’s Br. in Supp. of Def.’s Mot. for Summ. J., Ex. B.) The Plaintiff did
not timely offer any expert testimony in rebuttal.
IV. Conclusion
For the reasons set forth above, the Court GRANTS the Defendant’s Motion for
Summary Judgment [Doc. 65].
SO ORDERED, this 23 day of January, 2012.

/s/Thomas W. Thrash
THOMAS W. THRASH, JR.
United States District Judge

T:\ORDERS\10\Rice\msjtwt.wpd

-6-