Morris v. Minnesota Mining and Manufacturing Company et al

Filing 56

MEMORANDUM OPINION. Signed by Magistrate Judge Beth P. Gesner on 4/16/2015. (dass, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
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BRENDA LOUISE MORRIS,
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Plaintiff,
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v.

Case No. BPG-13-1107
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MINNESOTA MINING AND
MANUFACTURING COMPANY, et al.,

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Defendants.
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MEMORANDUM OPINION
The above-referenced case was referred to the undersigned for all proceedings with the
consent of the parties (ECF Nos. 20, 22), pursuant to 28 U.S.C. 636(c) and Local Rule 301.4.
(ECF No. 16.) Currently pending is Defendants’ Motion for Summary Judgment (“Motion”)
(ECF No. 39), plaintiff’s Opposition to Defendants’ Motion for Summary Judgment (ECF No.
45), Plaintiff’s Memorandum of Grounds and Authorities in Support of Plaintiff’s Opposition to
Defendants’ Motion for Summary Judgment (“Opposition”) (ECF No. 46), and Defendants’
Reply Memorandum in Support of Their Motion for Summary Judgment (ECF No. 49). Oral
argument was held before the undersigned on March 30, 2015. For the reasons discussed herein,
Defendants’ Motion for Summary Judgment (ECF No. 39) is GRANTED.
I.

Background
The following is a summary of the evidence in this case, viewed in the light most

favorable to plaintiff.

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In October 2007, plaintiff Brenda Louise Morris (“plaintiff”) 1 was

Plaintiff originally proceeded pro se, but is now represented by counsel. (ECF No. 37.)

prescribed Aldara cream 2 (hereinafter “Aldara”) for treatment of Bowen’s disease, a form of skin
cancer which had manifested on plaintiff’s nose. (Pl.’s Compl. ¶ 7, ECF No. 1 at 3; Pl.’s Resps.
to Reqs. for Admis. Nos. 4 and 5, ECF No. 39-3 at 3.) Pursuant to her dermatologist’s orders,
plaintiff applied Aldara to her nose two times daily for a period of eight weeks. (Pl.’s Ans. to
Interrogs. No. 2, ECF No. 39-4 at 2-3.) Shortly after plaintiff began applying Aldara to her nose,
she developed burning lesions on her entire body. (Pl.’s Ans. to Interrogs. No. 7, Id. at 4.)
Plaintiff sought medical attention and was ultimately diagnosed with severe cutaneous Lupus,
which was determined to be proximately caused by plaintiff’s use of Aldara. (ECF No. 39-5 at
15.) Plaintiff recently underwent neurological and neuropsychological testing which indicated
that she also suffers from Posterior Reversible Encephalopathy Syndrome. (Kozachuk Aff. ¶ 7,
ECF No. 46-2 at 2.) It was opined that this condition was also proximately caused by plaintiff’s
use of Aldara. (Kozachuk Aff. ¶ 9, Id.)
Aldara is currently approved by the United States Food and Drug Administration
(hereinafter “FDA”) for treatment of three conditions: (1) actinic keratosis, (2) superficial basal
cell carcinoma, and (3) external genital warts. (ECF No. 46 at 2; Kavanaugh Aff. ¶ 6, ECF No.
39-1 at 3.) The use of Aldara to treat Bowen’s disease is an “off-label” use, as Aldara has not
been proven safe and effective in the treatment of that disease. (Pl.’s Compl. ¶ 19, ECF No. 1 at
11; ECF No. 39-5 at 8, 11-14.)
In November 2010, plaintiff sued her dermatologist for negligence and medical
malpractice in the United States District Court for the District of Maryland, alleging that he
breached the applicable standard of care by prescribing Aldara for an off-label use. (ECF No.
39-6 at 2-3.) Plaintiff’s case was dismissed for lack of subject matter jurisdiction. (ECF No. 397 at 2-3.)
2

Aldara is the trade name for a prescription drug called Imiquimod. (Kavanaugh Aff. ¶ 4, ECF No. 39-1 at 2-3.)

2

Thereafter, in December 2010, plaintiff filed suit against her dermatologist in the Circuit
Court for Howard County, once again alleging that he breached the applicable standard of care
by prescribing Aldara for an off-label use. (ECF No. 39-8 at 2-3.) Upon consideration of
defendant’s Motion to Dismiss, however, plaintiff’s case was dismissed for failure to comply
with the Maryland Health Claims Malpractice Act. (ECF No. 39-9 at 2; ECF No. 39-10 at 2-3.)
In October 2011, plaintiff once again filed suit against her dermatologist in the Circuit
Court for Howard County. (ECF No. 39-11 at 3.) Plaintiff’s First Amended Complaint not only
asserted that defendant prescribed Aldara for an off-label use, but also acknowledged that the
FDA and defendants warn against prescribing Aldara for off-label use due to the potential for
severe side effects. (ECF No. 39-12 at 3.) The Circuit Court dismissed plaintiff’s case in
February 2012. (ECF No. 39-13 at 2.)
Plaintiff subsequently filed the instant lawsuit in April 2013 against (1) Minnesota
Mining and Manufacturing Company, (2) Minnesota Mining and Manufacturing Company a/k/a
3M, (3) 3M Pharmaceuticals, a division of Minnesota Mining and Manufacturing Company, and
(4) 3M Health Care Limited, asserting claims for negligence, negligence per se, product liability,
breach of warranty, “conscious indifference,” and malice. (Pl.’s Compl., ECF No. 1 at 1, 7-11.)3
Plaintiff now alleges that defendants failed to provide adequate warnings concerning the risks,
consequences, and side effects associated with the use of Aldara. (Pl.’s Compl. ¶¶ 7-9, 14, 16,
Id. at 3-7, 9-10.) Further, plaintiff alleges that defendants warranted that Aldara was safe and
effective for treating Bowen’s disease when they knew it was not. (Pl.’s Compl. ¶ 19, Id. at 11.) 4
3

Defendants explain that “Minnesota Mining and Manufacturing Company” and “Minnesota Mining and
Manufacturing Company a/k/a 3M” are the same entity, which should be referred to as “3M Company.” (ECF No.
39 at 1.) Further, “3M Pharmaceuticals” is an internal division within 3M Company, rather than a separate entity.
(Id.) The undersigned will refer to defendants collectively as “3M.”
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The undersigned notes that plaintiff has changed the substance of her allegations since she filed suit against her
doctor. Specifically, plaintiff previously alleged her doctor acted outside the standard of care, and in contravention

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II.

Summary Judgment Standard
Summary judgment is appropriate when “there is no genuine dispute as to any material

fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A genuine
dispute remains “if the evidence is such that a reasonable jury could return a verdict for the
nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is
properly considered “material” only if it might affect the outcome of the case under the
governing law. Id. The party moving for summary judgment has the burden of demonstrating
the absence of any genuine issue of material fact. Fed. R. Civ. P. 56(a); Pulliam Inv. Co., Inc. v.
Cameo Props., 810 F.2d 1282, 1286 (4th Cir. 1987). On those issues for which the non-moving
party will have the burden of proof, however, it is his or her responsibility to oppose the motion
for summary judgment with affidavits or other admissible evidence specified in Federal Rule of
Civil Procedure 56. Fed. R. Civ. P. 56(c); Mitchell v. Data Gen. Corp., 12 F.3d 1310, 1315-16
(4th Cir. 1993). If a party fails to make a showing sufficient to establish the existence of an
essential element on which that party will bear the burden of proof at trial, summary judgment is
proper. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).
When reviewing a motion for summary judgment, the court does not evaluate whether the
evidence favors the moving or non-moving party, but considers whether a fair-minded jury could
return a verdict for the non-moving party on the evidence presented. Anderson, 477 U.S. at 252.
In undertaking this inquiry, the court views all facts and makes all reasonable inferences in the
light most favorable to the non-moving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986). The non-moving party, however, may not rest on its pleadings,

of warnings provided by defendants and the FDA, by prescribing Aldara for an off-label use. Morris v. Pearson, No.
10-cv-03153-WMN (D. Md. dismissed Nov. 15, 2010); Morris v. Pearson, No. 10-C-10-085052 (Cir. Ct. Howard
Cnty. dismissed Feb. 25, 2011); Morris v. Pearson, No. 13-C-11-88569 (Cir. Ct. Howard Cnty. dismissed Feb. 3,
2012).

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but must show that specific, material facts exist to create a genuine, triable issue. Celotex, 477
U.S. at 324. A “scintilla” of evidence in favor of the non-moving party, however, is insufficient
to prevent an award of summary judgment.

Anderson, 477 U.S. at 252.

Further, “mere

speculation” by the non-moving party or the “building of one inference upon another” cannot
create a genuine issue of material fact. Cox v. Cnty. of Prince William, 249 F.3d 295, 299-300
(4th Cir. 2001). Summary judgment should be denied only where a court concludes that a
reasonable jury could find in favor of the non-moving party. Anderson, 477 U.S. at 252.
III.

Discussion
Defendants contend that they are entitled to summary judgment on all claims asserted

against them by plaintiff. (ECF No. 39 at 3.) Specifically, defendants argue that summary
judgment is proper because: (1) plaintiff’s claims are barred by the learned intermediary
doctrine; (2) plaintiff’s claims are barred by limitations; (3) plaintiff is asserting claims against
the wrong defendant; and (4) plaintiff has no evidence to support the essential elements of her
claims. (Id. at 9-14.) In her Opposition, plaintiff challenges each of these arguments. (ECF No.
46 at 4-8.) For the following reasons, the undersigned grants summary judgment in favor of
defendants on all of plaintiff’s claims.
A. Learned Intermediary Doctrine
First, defendants argue that they are entitled to summary judgment on the sole basis that
plaintiff’s claims are barred by the learned intermediary doctrine. (ECF No. 39 at 9; ECF No. 49
at 5.) Plaintiff, however, claims that the learned intermediary doctrine is not applicable to this
case. (ECF No. 46 at 4.) Pursuant to the learned intermediary doctrine, drug manufacturers owe
no duty to directly warn a patient of the risks associated with a particular drug, so long as the
manufacturer has provided adequate warning to the prescribing physician.

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Lee v. Baxter

Healthcare Corp., 721 F. Supp. 89, 94-95 (D. Md. 1989). The physician is thus a “learned
intermediary” between the manufacturer and the patient, because the physician is better
positioned to determine the appropriate course of treatment for the patient. Id. at 95. The
manufacturer is similarly under no obligation to warn the patient of risks associated with an offlabel or non-indicated use of a drug and, therefore, cannot be held liable in the event the
physician prescribes a drug for such use. Robak v. Abbott Labs., 797 F.Supp 475, 476 (D. Md.
1992). In fact, “when a physician decides to dispense an ethical drug for a condition for which it
is not indicated, the manufacturer should not be held responsible for the consequences on any
product liability theory under Maryland law.” Id. (emphasis added).
Defendants assert that plaintiff’s claims fail in accordance with Robak’s reasoning
because plaintiff’s dermatologist prescribed Aldara for an off-label use; therefore, defendants
cannot be held liable for any alleged consequences resulting from such use. (ECF No. 39 at 10.)
Plaintiff attempts to distinguish Robak, arguing that plaintiff’s injuries are not attributable to her
dermatologist’s off-label prescription of Aldara, but rather the inherently dangerous design of
Aldara itself. (ECF No. 46 at 5.) 5 It is plaintiff’s position, therefore, that even an “on-label”
prescription of Aldara would have caused her alleged injuries.

(Id.)

Plaintiff claims that

additional discovery would allow her to produce evidence demonstrating Aldara’s defective
design. (Id. at 5-6.)
This case is indistinguishable from Robak. Plaintiff has admitted, and the evidence of
record confirms, that Aldara has not been approved for the treatment of Bowen’s disease. (Pl.’s
5

Defendants claim that plaintiff has changed the “gravamen” of her Complaint in responding to defendants’ Motion.
(ECF No. 49 at 3.) Specifically, defendants contend that plaintiff originally alleged her injuries were caused by
defendants’ failure to warn, but now alleges that they were caused by Aldara’s inherently dangerous design. (Id.)
Indeed, plaintiff did allege that Aldara is “a dangerously defective product” and “defective in design or
formulation.” (Pl.’s Compl. ¶¶ 15, 17, ECF No. 1 at 9-10.) As defendants note, however, Robak precludes holding
defendants liable under any product liability theory. (ECF No. 39 at 8; ECF No. 49 at 5 (citing Robak, 797 F.Supp
at 476).)

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Compl. ¶ 19, ECF No. 1 at 11; ECF No. 39-5 at 8, 11-14; Kavanaugh Aff. ¶ 6, ECF No. 39-1 at
3.) Because plaintiff’s dermatologist prescribed Aldara for an off-label use, defendants are not
responsible for the alleged consequences of plaintiff’s use of that drug. Further, plaintiff has
failed to put forth any evidence, or identify with specificity what additional evidence exists,
which could create a factual issue as to the defectiveness of Aldara. Nothing in plaintiff’s expert
affidavit (ECF No. 46-2 at 1-2) supports plaintiff’s argument that her injuries were caused by the
defective design of Aldara. Additionally, the fact that an “on-label” use of Aldara might have
caused injuries similar to plaintiff’s alleged injuries does not negate the application of Robak to
the facts presented here. Accordingly, because plaintiff has failed to create a factual issue
regarding the applicability of the learned intermediary doctrine, defendants’ summary judgment
motion is granted. Although summary judgment is justified on this basis alone, the undersigned
will address defendants’ remaining arguments.
B. Statute of Limitations
Defendants’ second argument is that plaintiff’s claims are barred by limitations because
plaintiff had sufficient knowledge in October 2007 to suggest that she had a potential cause of
action against defendants; however, plaintiff waited until April 2013, nearly five and a half years
later, to file this lawsuit. (ECF No. 39 at 10-12.) In opposition, plaintiff argues that the
limitations period did not commence until October 2011 when plaintiff was correctly diagnosed
and became aware that her condition was related to Aldara. (ECF No. 46 at 7-8.)
Pursuant to Maryland law, “[a] civil action . . . shall be filed within three years from the
date it accrues.” MD. CODE ANN., CTS. & JUD. PROC. § 5-101 (West 2014). This three-year
limitations period begins when the plaintiff “knew or reasonably should have known” of the
alleged wrong. Pennwalt Corp. v. Nasios, 550 A.2d 1155, 1160 (Md. 1988) (internal quotation

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marks and citation omitted). A plaintiff is regarded as having knowledge of an alleged wrong
when the plaintiff “gains knowledge sufficient to prompt a reasonable person to inquire further.”
Id. at 1163.

In Maryland, the temporal proximity between the use of a drug and the

manifestation of injuries is sufficient to prompt a reasonable plaintiff to investigate. Quillin v.
C.B. Fleet Holding Comp., Inc., 328 Fed.Appx. 195, 199-200 (4th Cir. 2009). If the plaintiff
fails to investigate, however, she is nonetheless charged with the information that a reasonable
investigation would have likely revealed. Pennwalt, 550 A.2d at 1162.
Plaintiff applied Aldara to her nose twice daily for an eight week period beginning in
October 2007. (Pl.’s Resps. to Reqs. for Admis. No. 5, ECF No. 39-3 at 3; Pl.’s Ans. to
Interrogs. No. 2, ECF No. 39-4 at 2-3.) Further, plaintiff has acknowledged that she began
noticing symptoms, particularly, burning lesions on her entire body, within “days after taking
[Aldara].” (Pl.’s Ans. to Interrogs. No. 7, Id. at 4.) Given the temporal proximity between
plaintiff’s use of Aldara and the alleged appearance of such lesions, plaintiff had sufficient
knowledge in 2007 to be prompted to further investigate whether Aldara was responsible for her
alleged injuries. Indeed, plaintiff did investigate, by seeking medical treatment immediately
after her symptoms appeared. (Pl.’s Resps. to Reqs. for Admis. No. 3, ECF No. 39-3 at 3.)
Plaintiff argues, however, that she was not properly diagnosed with severe cutaneous Lupus until
2011 (ECF No. 39-5 at 9, 15), and that her neurological symptoms were “never investigated” or
“properly evaluated” until plaintiff was examined by Dr. Kozachuk in 2014. (Kozachuk Aff. ¶¶
7-8, ECF No. 46-2 at 2; ECF No. 46 at 7.)
The fact that plaintiff’s symptoms, neurological or otherwise, were not properly
evaluated or diagnosed from the outset does not form a basis for tolling the limitations period.
Plaintiff knew or should have known that Aldara might be responsible for her alleged injuries

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when she initially experienced adverse symptoms and sought medical treatment in 2007.
Therefore, the limitations period began to run at that time. See Quillin, 328 Fed.Appx at 199200 (determining that plaintiff was on notice of possible wrongdoing because of the “proximity
in time” of plaintiff’s kidney failure to his colonoscopy procedure and ingestion of an over-thecounter medication) (internal quotation marks and citation omitted). Additionally, it should be
noted that, according to plaintiff’s expert, the labeling information for Aldara describes
symptoms associated with its use which are comparable to those symptoms allegedly
experienced by plaintiff. (ECF No. 39-5 at 4-7.) Because a reasonable investigation by plaintiff
would have revealed this information, she is presumed to have had knowledge of it. In sum,
there is no genuine issue of material fact that plaintiff had knowledge of her potential claims in
2007, but did not file the instant case until April 15, 2013, over five years later. Plaintiff’s
claims, therefore, are barred by limitations, and summary judgment for defendants is warranted.
C. 3M Is Not The Appropriate Party
Defendants contend that summary judgment is appropriate because plaintiff has sued the
wrong party. (ECF No. 39 at 12.) Defendants assert that, in 2006, they sold their pharmaceutical
operations in the United States, Canada, and Latin America to Graceway Pharmaceuticals, LLC
(hereinafter “Graceway”). (Kavanaugh Aff. ¶ 3, ECF No. 39-1 at 2.) As a result of this
transaction, Graceway acquired the exclusive rights to manufacture Aldara. (Kavanaugh Aff. ¶
4, Id.) Since 2006, defendants have not marketed or sold Aldara to any consumers. (Kavanaugh
Aff. ¶¶ 3-4, Id. at 2-3.) When plaintiff purchased Aldara in 2007, therefore, it was marketed and
sold by Graceway. (Kavanaugh Aff. ¶ 4, Id. at 3.)
Plaintiff asserts that because Aldara was defectively designed, defendants remain liable to
plaintiff as the original manufacturer pursuant to the Hatch-Waxman Amendments of the Food,

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Drug and Cosmetics Act. (ECF No. 46 at 8.)6 Plaintiff has failed, in both her Opposition and at
oral argument, however, to offer any evidence to support the proposition that Aldara was
defectively designed. Consequently, summary judgment for defendants is appropriate.
D. Summary Judgment Evidence
Defendants’ final argument is that plaintiff has presented no evidence to support any of
her claims in this case. (ECF No. 39 at 12.) Based upon a thorough review of the record, it is
evident that plaintiff has not produced any evidence to show that “specific, material facts exist to
create a genuine, triable issue.” Celotex, 477 U.S. at 324. 7
Plaintiff attempts to generate a material factual issue by offering the affidavit of Dr.
Walter E. Kozachuk, and attachments.

(ECF Nos. 46-2, 46-3, 46-5, 46-7, 46-9.) 8

An

examination of Dr. Kozachuk’s affidavit reveals, however, that it offers no evidence to support
plaintiff’s claims. The report contains no specific evidence that Aldara is defective, or that
Aldara caused plaintiff’s alleged injuries. Rather, the report merely contains the conclusory
assertions, without evidentiary support, that plaintiff’s neurological symptoms were “never
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The Hatch-Waxman Amendments provide an abbreviated application process for the approval of a generic drug by
the FDA. 21 U.S.C.A. § 355(j) (West 2013). Because Aldara is not a generic drug, it is not apparent how those
Amendments are pertinent here. Although plaintiff correctly states that pioneer and generic drug manufacturers
must seek FDA approval prior to changing a drug product, plaintiff’s claim that defendants remain liable because
Graceway has not altered Aldara is without merit. 21 C.F.R. §§ 314.54, 314.70, 314.96, 314.97 (2015).
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As to plaintiff’s negligence claim, plaintiff has not shown that defendants owed her a duty, that defendants
breached that duty, or that there was a causal relationship between the alleged breach and the injuries suffered by
plaintiff. See Schultz v. Bank of Am., N.A., 990 A.2d 1078, 1086 (Md. 2010). Plaintiff has failed to offer evidence
that defendants violated a statute or ordinance designed to protect a class of persons including plaintiff or that
plaintiff’s injuries were proximately caused by the alleged violation, as is necessary to prove negligence per se. See
Allen v. Dackman, 991 A.2d 1216, 1222-23 (Md. 2010). Nor has plaintiff produced any evidence that defendants
sold Aldara, that Aldara was defective, that Aldara was unreasonably dangerous, or that the defective nature of
Aldara proximately caused plaintiff’s injuries in order to support her products liability claim. See Heckman v.
Ryder Truck Rental, Inc., 962 F.Supp.2d 792, 802 (D. Md. 2013). Finally, plaintiff has no evidence to support her
breach of warranty claim that Aldara was defective, that defendants are responsible for the defect, or that the defect
proximately caused plaintiff’s injuries. See Crickenberger v. Hyundai Motor Am., 944 A.2d 1136, 1143-44 (Md.
2008).
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Plaintiff has not even attempted to authenticate the attachments she offers in her Opposition. (ECF Nos. 46-5, 467, 46-9.) None of these unsworn, unauthenticated documents can be considered on a motion for summary judgment.
Solis v. Prince George’s Cnty., 153 F.Supp.2d 793, 798-99 (D. Md. 2001).

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investigated,” “never properly evaluated,” and “show direct causation to the drug Aldara.”
(Kozachuk Aff. ¶¶ 7-9, ECF No. 46-2 at 2.) Such conclusory affidavits must be rejected by the
Court when they represent nothing more than “an effort on the part of the plaintiff[] to create an
issue of fact.” Rohrbough v. Wyeth Labs., Inc., 916 F.2d 970, 976 (4th Cir. 1990). In sum,
plaintiff has not offered any evidence warranting the denial of summary judgment for
defendants.
Further, the undersigned concludes that plaintiff’s attempt to defeat defendants’ summary
judgment motion by claiming she needs additional discovery must fail. Plaintiff argues that, in
order to appropriately respond to defendants’ Motion, she requires additional time to conduct
discovery regarding her recently diagnosed neurological and neuropsychological conditions, as
well as Aldara’s allegedly dangerous design. (ECF No. 46 at 5-7.) Pursuant to Federal Rule of
Civil Procedure 56(d), the Court may allow time to take discovery “[i]f a nonmovant shows by
affidavit or declaration” that she cannot present facts to justify her opposition to a summary
judgment motion. Fed. R. Civ. P. 56(d). Such a request for discovery may be denied, however,
“where the additional evidence sought for discovery would not have by itself created a genuine
issue of material fact sufficient to defeat summary judgment.” Hamilton v. Mayor & City
Council of Baltimore, 807 F.Supp.2d 331, 342 (D. Md. 2011) (internal citation omitted).
By letter order dated November 4, 2014, the court specifically invited plaintiff to make
the requisite showing under Rule 56(d). (ECF No. 44.) 9 Plaintiff has failed to specifically

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Plaintiff filed a Motion to Modify Scheduling Order (the “Motion to Modify”) on September 29, 2014, requesting
to extend all deadlines in the Scheduling Order by ninety days to allow plaintiff to conduct additional discovery and
designate additional expert witnesses. (ECF No. 38 at 1.) Defendants opposed the Motion to Modify, arguing that
such an extension was unnecessary because no additional discovery could salvage plaintiff’s claims. (ECF No. 40 at
1-5.) Defendants also requested (Id. at 4), and plaintiff agreed (ECF No. 43 at 3), to defer the undersigned’s
consideration of plaintiff’s Motion to Modify until defendants’ summary judgment motion was resolved. The
undersigned deferred ruling on plaintiff’s Motion to Modify, and gave plaintiff the opportunity to identify what
additional discovery was necessary pursuant to Rule 56(d). (ECF No. 44.) As discussed above, because plaintiff
has not presented evidence to establish any genuine issue of material fact, or that discovery is necessary before

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identify, in accordance with Rule 56(d), what further discovery she requires, or what evidence
that discovery would unveil. Indeed, at oral argument on the summary judgment motion, the
undersigned specifically asked plaintiff’s counsel to detail what additional evidence plaintiff
needed before responding to defendants’ Motion. Despite plaintiff’s counsel’s well-intentioned
attempts, he was unable to do so. Accordingly, because plaintiff has not produced evidence
sufficient to support the basic elements of her claims, defendants’ Motion is granted.
IV.

Conclusion
For the foregoing reasons, Defendants’ Motion for Summary Judgment (ECF No. 39) is

GRANTED. A separate order will be issued.

Date:

4/16/15

/s/
Beth P. Gesner
United States Magistrate Judge

plaintiff can oppose defendants’ motion for summary judgment, it is not appropriate to extend the discovery
deadline.

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