Flowers v. Eli Lilly and Company

Filing 107

ORDERED that Plaintiff Flowers' Motion to Amend Complaint (ECF No. 96 ) is DENIED. FURTHER ORDERED that Plaintiff Flowers' Motion to Reassign Jurisdiction (ECF No. 97 ) is DENIED. FURTHER ORDERED that Defendant Eli Lilly's Mo tion for Summary Judgment (ECF No. 82 ) is GRANTED. The Clerk of Court shall enter judgment in favor of Eli Lilly, and against Plaintiff Flowers. Signed by Judge Larry R. Hicks on 7/30/2016. (Copies have been distributed pursuant to the NEF - DRM)

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UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA

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JOHN FLOWERS,

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Plaintiff,

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v.

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3:14-CV-00094-LRH-VPC

ORDER

ELI LILLY AND COMPANY,
Defendant.

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Before the court is Defendant Eli Lilly and Company’s (“Eli Lilly”) Motion for Summary

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Judgment. ECF No. 82.1 Plaintiff John Flowers (“Flowers”) filed an Opposition (ECF No. 87),

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to which Eli Lilly replied (ECF No. 93). Also before the Court is Flowers’ Motion to Amend

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Complaint (ECF No. 96) and Motion to Reassign Jurisdiction (ECF No. 97), to which Eli Lilly

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responded (ECF Nos. 98 and 101).

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I. Facts and Procedural History

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This is a pharmaceutical product liability suit in which pro se plaintiff Flowers alleges

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that the antipsychotic medicine Zyprexa caused his diabetes. Flowers’ legal claim is one for

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negligence sounding in failure to warn. Zyprexa is an antipsychotic drug manufactured by Eli

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Lilly that has been approved by the Food and Drug Administration (“FDA”) for treatment of

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schizophrenia and bipolar disorder. Medical records from the Nevada Department of

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Corrections (“NDOC”), where Flowers was incarcerated from 1997 to 2015, document two

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periods of Zyprexa treatment, from 2002 to 2003 and 2009 to 2015. Flowers was diagnosed with

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Refers to the Court’s docket number.

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diabetes in 2012. In July 2015, this Court granted Eli Lilly’s motion for summary judgment in

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part and dismissed the portion of Flowers’ suit based on his Zyprexa use from 2009 to 2015.

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ECF No. 61. Following the Court’s ruling, Flowers advised that Dr. Jakob Camp, the

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psychiatrist who first prescribed Zyprexa to him in 2002, and Dr. Karen Gedney, an NDOC

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internal medical doctor, would be supplying the expert testimony necessary to support his burden

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of establishing medical causation. The Court granted Eli Lilly leave to conduct the depositions

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of these doctors and, if appropriate, to file a second dispositive motion. ECF No. 69. Eli Lilly

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conducted the deposition of Dr. Camp on December 14, 2015, and the deposition of Dr. Gedney

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on December 16, 2015. On January 29, 2016, Eli Lilly filed the present Motion for Summary

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Judgment. ECF No. 82. On February 22, 2016, Flowers filed an Opposition. ECF No. 84. On

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March 9, 2016, Eli Lilly filed a Reply. ECF No. 93. On March 21, 2016, Flowers filed a Motion

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to Amend Complaint to Add Defendants. ECF No. 96. On April 4, 2016, Flowers filed a

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Motion to Reassign Jurisdiction. ECF No. 97. On April 7, 2016, Eli Lilly filed a Response to

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Flowers’ Motion to Amend. ECF No. 98. On April 21, 2016, Eli Lilly filed a Response to the

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Motion to Change Venue. ECF No. 101.

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II. Legal Standard

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A. Motion to Amend

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Before trial, and after previously amending its pleading once as a matter of course, “a

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party may amend its pleading only with the opposing party's written consent or the court's

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leave.” Fed.R.Civ.P. 15(a)(2). “The court should freely give leave when justice so requires.”

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Id. Circumstances under which leave may be denied include “undue delay, bad faith or dilatory

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motive on the part of the movant, repeated failure to cure deficiencies by amendments previously

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allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility

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of amendment, etc.” Foman v. Davis, 371 U.S. 178, 182 (1962).

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B. Motion to Change Venue

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“For the convenience of parties and witnesses, in the interest of justice, a district court

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may transfer any civil action to any other district or division where it might have been brought.”

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28 U .S.C. § 1404(a). The court may consider: (1) the location where the relevant agreements
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were negotiated and executed, (2) the state that is most familiar with the governing law, (3) the

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plaintiff's choice of forum, (4) the respective parties' contacts with the forum, (5) the contacts

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relating to the plaintiff's cause of action in the chosen forum, (6) the differences in the costs of

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litigation in the two forums, (7) the availability of compulsory process to compel attendance of

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unwilling non-party witnesses, and (8) the ease of access to sources of proof. Jones v. GNC

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Franchising, Inc., 211 F.3d 495, 498–99 (9th Cir. 2000).

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C. Summary Judgment

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Summary judgment is appropriate only when the pleadings, depositions, answers to

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interrogatories, affidavits or declarations, stipulations, admissions, and other materials in the

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record show that “there is no genuine issue as to any material fact and the movant is entitled to

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judgment as a matter of law.” Fed. R. Civ. P. 56(a). In assessing a motion for summary

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judgment, the evidence, together with all inferences that can reasonably be drawn therefrom,

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must be read in the light most favorable to the party opposing the motion. Matsushita Elec.

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Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Cnty. of Tuolumne v. Sonora Cmty.

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Hosp., 236 F.3d 1148, 1154 (9th Cir. 2001). A motion for summary judgment can be complete

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or partial, and must identify “each claim or defense—or the part of each claim or defense—on

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which summary judgment is sought.” Fed. R. Civ. P. 56(a).

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The party moving for summary judgment bears the initial burden of informing the court

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of the basis for its motion, along with evidence showing the absence of any genuine issue of

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material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). On those issues for which it

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bears the burden of proof, the moving party must make a showing that no “reasonable jury could

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return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

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(1986). On an issue as to which the nonmoving party has the burden of proof, however, the

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moving party can prevail merely by demonstrating that there is an absence of evidence to support

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an essential element of the non-moving party’s case. Celotex, 477 U.S. at 323.

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To successfully rebut a motion for summary judgment, the nonmoving party must point

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to facts supported by the record that demonstrate a genuine issue of material fact. Reese v.

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Jefferson Sch. Dist. No. 14J, 208 F.3d 736, 738 (9th Cir. 2000). A “material fact” is a fact “that
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might affect the outcome of the suit under the governing law.” Liberty Lobby, 477 U.S. at 248.

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Where reasonable minds could differ on the material facts at issue, summary judgment is not

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appropriate. See v. Durang, 711 F.2d 141, 143 (9th Cir. 1983). A dispute regarding a material

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fact is considered genuine “if the evidence is such that a reasonable jury could return a verdict

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for the nonmoving party.” Liberty Lobby, 477 U.S. at 248. The mere existence of a scintilla of

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evidence in support of the party’s position is insufficient to establish a genuine dispute; there

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must be evidence on which a jury could reasonably find for the party. See id. at 252.

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“[S]peculative and conclusory arguments do not constitute the significantly probative evidence

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required to create a genuine issue of material fact.” Nolan v. Cleland, 686 F.2d 806, 812 (9th

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Cir. 1982).

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III. Discussion

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A. Motion to Amend

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Flowers requests that the court add two additional drug manufacturers to the complaint.

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As Eli Lilly points out in its response, Flowers had not identified the drug manufacturers he

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would like to add to the complaint. Given the lack of identification, Flowers’ motion is denied.

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B. Motion to Change Venue

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Flowers also requests to have jurisdiction in this matter transferred to the U.S. District

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Court in Phoenix, Arizona.
“For the convenience of parties and witnesses, in the interest of justice, a district court

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may transfer any civil action to any other district or division where it might have been brought.”

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28 U.S.C. § 1404(a). Determining whether to transfer an action calls for an “individualized,

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case-by-case consideration of convenience and fairness.” Stewart Org., Inc. v. Ricoh Corp., 487

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U.S. 22, 29 (1988) (quoting Van Dusen v. Barrack, 367 U.S. 612, 622 (1964)). When deciding

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whether or not to transfer an action, the court may consider: (1) the location where the relevant

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agreements were negotiated and executed, (2) the state that is most familiar with the governing

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law, (3) the plaintiff's choice of forum, (4) the respective parties' contacts with the forum, (5) the

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contacts relating to the plaintiff's cause of action in the chosen forum, (6) the differences in the

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costs of litigation in the two forums, (7) the availability of compulsory process to compel
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attendance of unwilling non-party witnesses, and (8) the ease of access to sources of proof.

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Jones, 211 F.3d at 498–99.

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These factors weigh against transferring this case to another district. Specifically,

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Flowers was prescribed Zyprexa while residing in Nevada by healthcare professionals employed

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by the Nevada Department of Corrections. The only connection Arizona has to this case is that

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Flowers is currently incarcerated there. Additionally, this matter is subject to Nevada law, and

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this Court is more familiar with Nevada law than the court in Arizona would be. Finally, almost

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all of the healthcare professionals who treated Flowers with Zyprexa continue to reside in

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Nevada, which would place them outside the reach of the subpoena power of the Arizona court.

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For these reasons, the motion to change venue is denied.

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C. Proximate Cause

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Flowers product liability claim against Eli Lilly fails on two grounds. First, Flowers has

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not provided expert medical testimony that shows that his use of Zyprexa prior to 2004 was the

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proximate cause of his diabetes. In a products liability action, a plaintiff must provide medical

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expert testimony to establish that the product proximately caused the plaintiff’s injury. Hulihan

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v. Reg'l Transp. Comm'n of S. Nevada, 833 F. Supp. 2d 1226, 1233 (D. Nev. 2011) aff'd, 582 F.

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App'x 727 (9th Cir. 2014) and aff'd, 582 F. App'x 727 (9th Cir. 2014). Here, Dr. Camp and Dr.

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Gedney, the two physicians Flowers identified as the sponsors of his causation case, testified

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they held no opinion as to the cause of his diabetes. Specifically, while Dr. Camp identified

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Zyprexa as one of many risk factors for the development of diabetes, he also stated that he was

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not an expert in determining the cause of debates in individual patients, does not have an opinion

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to a reasonable degree of medical certainty as to the cause of Flowers’ diabetes, does not intend

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to offer any expert testimony concerning the role that Zyprexa prescribed in 2002 had in the

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development of Flowers’ diabetes, and that he thought “there are too many antipsychotic

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medications that John Flowers has been exposed to that carry the risk of inducing diabetes to

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specify one agent.” Additionally, Dr. Gedney disclaimed any expertise with respect to Zyprexa

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in her deposition and stated that she had arrived at no conclusions as to the cause of Flowers’

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diabetes. Thus, neither medical expert put forth by Flowers can provide the required proximate

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cause testimony, and Flowers’ claim fails.

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Additionally, Flowers cannot establish the proximate cause element of his failure to warn

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claim. “In Nevada, when bringing a strict product liability failure-to-warn case, the plaintiff

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carries the burden of proving, in part, that the inadequate warning caused his injuries.” Rivera v.

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Philip Morris, Inc., 125 Nev. 185, 190, 209 P.3d 271, 274 (2009). The burden of proving

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causation can be satisfied in failure-to-warn cases by demonstrating that a different warning

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would have altered the way the plaintiff used the product or would have “prompted plaintiff to

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take precautions to avoid the injury.” Id. at 191. As this Court previously established, the

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question becomes whether the treating psychiatrists would have altered their decision to

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prescribe Zyprexa had a different warning been provided. Flowers v. Eli Lilly & Co., No.

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782652, 0201 WL 284881, at *4 (D. Nev. July 10, 2015). Here, there is no evidence that Dr.

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Camp would have prescribed Flowers a different medication in 2002 if Eli Lilly had provided

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different warnings. In his deposition testimony, Dr. Camp states that Eli Lilly had mentioned the

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metabolic risks from the beginning, in 1996, and by the end of the 1990s, the risk was

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“prominently emphasized.” He further stated that at the time he prescribed Zyprexa to Flowers,

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in 2002, he felt he had adequate information about the potential for weight gain and glucose

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dysregulation. Finally, when asked if a different warning from Eli Lilly would have caused him

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to prescribe a different medication to Flowers, Dr. Camp answered “probably not.” Flowers has

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an affirmative burden of providing evidence to show that a different warning would have altered

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his doctor’s prescription decisions, and he has not done so here. Thus, his claim fails on this

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ground as well.

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D. Appointment of a Guardian ad Litem or Counsel

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In his response to Eli Lilly’s motion for summary judgment, Flowers also requests the

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appointment of a guardian ad litem or of counsel. Neither is appropriate here.

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Rule 17(c) (2) of the Federal Rule of Civil Procedure requires the Court to take measures

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to protect an incompetent person during litigation. Whether to appoint a guardian ad litem “must

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normally be left to the sound discretion of the trial court and may be reviewed only for abuse of
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that discretion.” United States v. 30 .64 Acres of Land, 795 F.2d 796, 805 (9th Cir.1986).

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However, because Flowers has failed to state a claim and cannot do so, the Court finds that

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appointment of a guardian ad litem in this action is not necessary. See Ingram v. City of San

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Francisco, 2012 WL 3257805 (N.D.Cal. 2012) (declining to appoint a guardian ad litem where

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plaintiff failed to raise meritorious claims); Perri v. Obama, 2011 WL 685826, *3 (E.D.N.Y.

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2011) (appointment of a guardian ad litem would be futile where it appears that no guardian

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could save plaintiff's claims from dismissal); M.F. ex rel. Branson v. Malott, 2012 WL 1950274,

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*7 (S.D.Ohio 2012) (appointment of a guardian ad litem would serve no useful purpose because

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it appears that no guardian ad litem could save the complaint from dismissal); see also

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Mandeville v. Wertheimer, 2002 WL 432689 (S.D.N.Y. 2002) (“When considering the

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appointment of a guardian ad litem, the Court, while seeking to protect a litigant's interests, must

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also be mindful of its obligation to avoid any potential waste of judicial resources through the

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unnecessary appointment of a guardian ad litem.”).
Flowers also requests the appointment of counsel to prosecute his case. There is no right

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to appointed counsel in a civil case, but a court may under “exceptional circumstances” appoint

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counsel for indigent civil litigants under 28 U.S.C. § 1915(e)(1). See Palmer v. Valdez, 560 F.3d

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965, 970 (9th Cir. 2009). The Court must consider the likelihood of success on the merits and

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the ability of the petitioner to articulate his claims in light of the complexity of the legal issues

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involved. Id. In this case, Flowers has sufficiently communicated the nature of his claims to the

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Court, and there is a low chance of success on the merits. The Court denies the motion for

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appointment of counsel.

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IV. Conclusion
IT IS THEREFORE ORDERED that Plaintiff Flowers’ Motion to Amend Complaint

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(ECF No. 96) is DENIED.
IT IS FURTHER ORDERED that Plaintiff Flowers’ Motion to Reassign Jurisdiction

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(ECF No. 97) is DENIED.

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IT IS FURTHER ORDERED that Defendant Eli Lilly’s Motion for Summary Judgment

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(Doc. #82) is GRANTED. The Clerk of Court shall enter judgment in favor of Eli Lilly, and

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against Plaintiff Flowers.

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IT IS SO ORDERED.

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DATED this 30th day of July, 2016.

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LARRY R. HICKS
UNITED STATES DISTRICT JUDGE

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