Woods-Gaston et al v. Abbott Laboratories et al

Filing 140

ORDER ADOPTING REPORT AND RECOMMENDATIONS. Ordered by Judge Eric N. Vitaliano on 1/6/2013. (Siegfried, Evan)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

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LAURA ANNE BEZUIDENHOUT,
Plaintiff,
MEMORANDUM AND ORDER

-againstTHE ABBOTT LABORATORIES & CO., eta!.,

10-CV-1011 (ENV) (JMA)

Defendants.

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VITALIANO, D.J.
On September 10,2012, Magistrate Judge Joan M. Azrack issued a Report and
Recommendation ("R&R") in which she recommended that defendants' motion for summary
judgment be granted, dismissing all claims brought in this action by plaintiff Laura Anne
Bezuidenhout. On October 4, 2012, plaintiff made timely objections to the R&R. After careful
and de novo review of the record, this Court adopts Judge Azrack's R&R in its entirety, as
supplemented by this Memorandum and Order, as the opinion of the Court. The reasons are
detailed below.
BACKGROUND
On March 5, 20 I 0, plaintiff filed suit against drug companies Abbott
Laboratories; Carnrick Laboratories, Inc.; Dart Industries, Inc.; E.R. Squibb & Sons, L.L.C
("Squibb"); Eli Lilly and Company ("Lilly"); GJaJ(oSmithKline, LLC;
GJaJ(oSmithKline/SmithKline Beecham Corp.; Kremers-Urban Co.; Lannett Co., Inc.;
Mallinckrodt Inc. ("Mallinckrodt"); Merck Sharp & Dohme Corp.; Merrell Dow
Pharmaceuticals, Inc.; Ortho-McNeil Pharmaceutical, Inc.; Pfizer; Premo Pharmacuetical
Laboratories, Inc. ("Premo"); Rhone-Poulenc Rorer Pharmaceuticals, Inc.; and Solvay

I

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Pharmaceuticals, Inc., asserting that defendants are liable for injuries Bezuidenhout sustained
from her in utero exposure to the prescription medication diethylstilbestrol ("DES"), (Compl. ~~
7-23, 34), which was formerly manufactured and marketed by each of the defendants. (Compl.
at~ 24.) On February 10,2012, Lilly filed a motion for summary judgment, (Docket No. 77),

which was joined by all other remaining defendants-Mallinckrodt, Premo, Squibb, and
Upjohn--claiming that plaintiff could not identifY the manufacturer of the DES taken by her
mother, as required under the law of Texas, which governs the case. 2
Upon reference pursuant to Rule 72(b), Judge Azrack determined that defendants'
motion for summary judgment dismissing all claims should be granted in its entirety. (Docket
No. 114.) To plaintiffs timely objections ("Objections"), (Docket Nos. 115, 117), Lilly filed a
timely response on October 9, 2012, (Docket No. 118).
STANDARD OF REVIEW
In reviewing a Report and Recommendation of a magistrate judge, a district judge
"may accept, reject, or modifY, in whole or in part, the findings or recommendations made by the
magistrate judge." 28 U.S.C. § 636(b)(l). Moreover, in conducting its review, the district "court
need only satisfy itselfthat there is no clear error on the face of the record" to accept a magistrate
judge's Report and Recommendation, that is, where no timely objection has been made. Urena

v. New York, 160 F. Supp. 2d 606, 609-10 (S.D.N.Y. 2001) (quoting Nelson v. Smith, 618 F.
Supp. 1186, 1189 (S.D.N.Y. 1985)). But, as is the case here, a district judge is required to
"determine de novo any part of the magistrate judge's disposition that has been properly objected
to." Fed. R. Civ. P. 72(b)(3); see also Arista Records, LLC v. Doe 3, 604 F.3d liO, 116 (2d Cir.
1

Pharmacia & Upjohn Co. ("Upjohn") was named as a defendant in the Amended Complaint
filed on April27, 2010.
2
The parties agree that Texas law is controlling here. (R&R at 4.)

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2010).
DISCUSSION
Plaintiff objects to the R&R, contending that the action should be permitted to
proceed to trial irrespective of plaintiff's ability to identify the drug company that manufactured
her mother's DES, because Texas law remains unsettled as to the applicability of the market
share theory of liability in the products liability field. (Objections at 1-7.) Relatedly, plaintiff
claims that she raises a genuine issue of fact as to the identity ofthe relevant drug manufacturer.
(Objections at 7-9; Ltr. (Oct. 4, 2012).)
I. Texas Courts Have Not Adopted Market Share Liability
Plaintiff argues that, founded on the premise that Texas courts have not
determined whether a plaintiff can use market share theory to prove causation in a products
liability action, a federal court applying Texas law should allow a case like the one at bar to
proceed to trial. Plaintiff postulates further that the New York Court of Appeals would do so, in
light of Texas's certification statute. (Objections at 1.) The Court need not wade too deeply into
Bezuidenhout's pool ofhypotheticals, since it rests upon a false premise-Texas law, as to proof
of causation, is unsettled. It is not. "Texas law," as Judge Azrack stated succinctly, "has
declined to adopt market share or other alternative liability theories for product liability suits."
(R&R at 8.) Thus as a foundational step, Texas law requires plaintiff to identify the specific
manufacturer of the DES ingested by her mother to warrant trial of liability issues.
Plaintiff tries to bootstrap to an alternate reality. She builds her argument around
Gaulding v. Celotex Corp., 772 S.W.2d 66, 71 (Tex. 1989), a J3cyear-old decision in which the
Supreme Court of Texas cabined its refusal to apply market share liability by stating that "[w]e
are not to be construed as approving or disapproving alternative liability, concert of action,

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enterprise liability, or market share liability in an appropriate case." (Objections at 5.) As built,
the argument is a phantom, focusing only on what the Texas high court did not do. Although
faced with the opportunity to add new lanes on the causality highway to encompass such theories
of liability, neither then nor in the intervening years, has the Supreme Court of Texas once
chosen to do so. (See R&R at 6 (citing Sysco Food Servs. v. Trapnell, 890 S. W.2d 796 (Tex.
1994); Objections at 5.)
Significantly, presented with the question of whether Texas law now recognizes
alternative theories ofliability, the Fifth Circuit has held on two occasions, post-Gaulding, that
Texas law requires "that the plaintiffs must prove that the defendant supplied the products which
caused the injury" in products liability actions. Fibreboard Corp. v. Pittsburgh Corning Co.,
893 F.2d 706, 711 (5th Cir. 1990); see also Cimino v. Raymark Industs., Inc., 151 F.3d 297, 312
(5th Cir. 1998)(rejecting district court's finding, on the basis of Gaulding, that the Texas
Supreme Court would apply collective liability, and determining that "under Texas personal
injury products liability law causation and damages are determined respecting plaintiffs as
individuals, not groups.")(citation omitted)). The Eastern District of Texas echoed this principle
in a recent pharmaceutical products liability action, reiterating that the plaintiff was required to
"adduce evidence that [the defendant] supplied the specific doses that allegedly caused
[plaintiff's] injury." Hicks v. Pfizer, 466 F. Supp. 2d 799, 804 (E.D. Tex. 2005).
Bezuidenhout is undeterred by this line of Fifth Circuit authority. She urges a
finding of ambiguity in Texas law nonetheless. Plaintiff begins with the premise that other state
high courts, having recognized the unique challenges presented by DES cases, have fashioned a
unique response, which they have demonstrated by "consistently declin[ing] to extend market
share theory beyond DES." (Objections at 5.) Since the Texas courts have never opined on such

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a case, the DES exception to products liability law is unsettled. By this logic, the law of any
state that has not decided a DES case would be deemed unsettled, levering New York courts, and
the courts of other states with similar conflicts laws, into the suboptimal position of deciding
novel questions of law on behalf of their sister states. Of course, such meddlesomeness should
be completely avoided in cases like this where the premise that the law is ambiguous is false.
Texas law is not unsettled; one of the objects of this lawsuit if to unsettle it. To the contrary, like
the Hicks court, this Court "is bound to apply the law of Texas as it currently exists and will not
create innovative theories of recovery or defense under local law." Hicks v. Pfizer, 466 F. Supp.
2d. at 803 (citation omitted). As Judge Azrack rightly concluded, "the general identification rule
under Texas law applies here and, in order to sustain her action, plaintiff must identify the
specific manufacturer [or manufacturers] of the DES to which she was exposed." (R&R at 8.)
2. Evidence of Manufacturer Identity
Plaintiff argues in her Opposition to defendants' summary judgment motion
(Docket no. 77-10), in her Objections to the R&R (Docket no. 117), and in a Supplemental
Affirmation (Docket no. 117) that defendants' are not entitled to summary judgment because she
has adduced evidence sufficient to identify Lilly as the manufacturer of the DES consumed by
her mother? Bezuidenhout constructs her argument around three highly flawed proffers of
evidence: (I) an affirmation by her mother, Annie Mary Wiseman ("Wiseman affirmation"); (2)
a telephone log ("Turner log") documenting a conversation between plaintiffs counsel and the
current owner of the pharmacy where Wiseman, as she testified, purchased DES; and (3) an
affirmation by a pharmaceutical consultant, Phillip P. Hamish ("Harnish affirmation"). As

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Presumably, if the Court were to credit Bezuidenhout's contention, the evidence aimed solely at
Lilly would exculpate all other defendants under the substantive law of Texas as it has been
determined by the Court.

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explained below, none (alone or in combination) raises a genuine issue of material fact.
A. Wiseman Affirmation

As Judge Azrack expounded in the R&R, numerous flaws undermine the
probative value ofthe Wiseman Affirmation. Most significantly, the affirmation, in which
Wiseman identifies Lilly as the manufacturer of the DES she ingested while pregnant with
plaintiff, directly contradicts deposition testimony she gave two years earlier. (Defs. Mem. in
Support, Ex. Bat 44.) "(A] party may not create an issue of fact by submitting an affidavit in
opposition to a summary judgment motion that, by omission or addition, contradicts the affiant's
previous deposition testimony." Hayes v. NY. City Dep 't of Corrections, 84 F.3d 614, 619 (2d
Cir. 1996). Without even attempting to explain the reason for Wiseman's about-face, the
affirmation, submitted with plaintiffs Opposition to defendants' summary judgment motion, is
not properly before the Court. See Reynolds v. Sealift, Inc., 311 Fed. Appx. 422,425 (2d Cir.
2009). The affirmation's reference to the "Dear Doctor" letter from Lilly forwarded by
Wiseman's prescribing doctor does not rehabilitate the averment in contradiction of her
deposition testimony. Neither in the affirmation, nor during her deposition, when Wiseman
discussed the very same letter at length, (Defs. Mem. in Support, Ex. B at 45-48), did she claim
that the letter, which she no longer has and a copy of which she does not claim to have seen since
the initiation of this suit, refreshed her memory or otherwise informed her that Lilly actually
manufactured her DES.
Bezuidenhout contends, nonetheless, that, pursuant to the reasoning of Hicks v.
Charles Pfizer& Co., 466 F. Supp.2d 799 (E.D. Tex. 2005), the Court should consider the "Dear
Doctor letter" as "adequate circumstantial evidence to defeat summary judgment." (Objections
at 8.) The Hicks court, as Judge Azrack observed, allowed plaintiffs action to survive summary

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judgment on the basis of four newspaper articles, which it found admissible pursuant to Federal
Rule of Evidence 807. In so doing, the court ruled that the articles "evince particularized
guarantees oftrustworthiness."4 None of those particularized guarantees are present in this
instance, nor are any others offered by plaintiff. (R&R at II.) Indeed, Judge Azrack correctly
found Hicks inapposite for that reason. Id. The Wiseman affirmation, including its reference to
the "Dear Doctor letter" remains inadmissible and, therefore, cannot raise a genuine issue of
material fact.
B. Turner Log
The Turner Jog is similarly unhelpful in establishing the existence of a disputed
material fact. Presented as plaintiff's counsel's notes from a conversation with the owner of the
pharmacy where Wiseman purchased DES regarding past practices at the pharmacy, (Shainwald
Aff. Ex. C.), the Turner log constitutes hearsay. 5 Furthermore, it does not memorialize that the
pharmacist had knowledge (personal or recorded) that plaintiff's mother was dispensed Lilly's
product, i.e., that he is competent to testify about anything regarding whether DES was actually
dispensed there to fill Wiseman's prescription, much less its origin. /d. At best, the Turner log
informs that, at some point, Lilly's DES was among the medications available at the pharmacy.
It would be speculative, and impermissible, to infer solely on that basis that Lilly's DES was the
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The Hicks court delineated five such guarantees: (I) "the statements in question were made
long before any motive to fabricate arose," (2) "[h]ad Pfizer not manufactured the vaccine, it is
likely that the true manufacturer ... would have stepped forward to correct the misinformation
contained in the newspaper articles," (3) "[t]he risk of mistake or dishonesty is reduced given the
multiple publications by different sources," (4) "the newspaper articles were written and
published nearly contemporaneously with the events in question," and (5) "the issue of product
identification presented in this case is a 'binary event': either Pfizer supplied the doses, or it did
not." 466 F. Supp. 2d at 808-09.
5
On its face, it is not clear whether the Jog constitutes ordinary or double hearsay, as the two
sentence summary does not specify whether Turner was describing the practice of the pharmacy
while it was under his ownership or while it was under the ownership of his predecessor, about
which he would have learned only second hand.
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only one dispensed to Wiseman. As Judge Azrack discussed in detail, the Turner log contains
nothing more than "a conclusory statement," on the basis of which "no reasonable jury could
find for plaintiff." (R&R at 13.) Nothing in the proffer justifies an exception to the hearsay rule;
nor can it support a factual conclusion as to the pharmacy's practice at the relevant time. "As a
result, the Turner telephone log is also insufficient to create a genuine issue of material fact in
this case." Jd
C. Harnish Affirmation
After objecting to the R&R, plaintiff attempted to repair her evidentiary
shortcomings by filing the Harnish affirmation in a supplemental submission. (See Ltr. (Oct. 4,
2012).) In fact, if anything, the Harnish affirmation has had the reverse effect, serving only to
undermine any shred of probative value the Court might have found in the Turner log. In his
affirmation, Harnish, a pharmaceutical consultant, affirms that the current owner of the
pharmacy where Wiseman says she purchased DES told him by telephone that the pharmacy
stocked DES manufactured by Lilly when he purchased the business in 1962. (Harnish
affirmation

at~

6.) As plaintiff was born in 1957, (Objections at 2), the Harnish codicil to the

Turner log about the stocking of Lilly's DES is entirely immaterial, other than to diminish the
probative worth of the Turner log. As a consequence, the log and the codicil, whether each is
read separately or in combination, do not create a material issue as to the identity of the
manufacturer (or manufacturers) of the DES consumed by Wiseman (even discounting the
hearsay bar).
Thus having reviewed de novo the evidence, the Court concludes that plaintiff
fails to raise a genuine issue of material fact regarding the identity of the manufacturers ofthe
DES that her mother ingested. In any event, assuming, as plaintiff claims, that these proffers did

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create a genuine issue of material fact about whether Lilly manufactured the DES plaintiffs
mother ingested, summary judgment would still be properly granted as to all active defendants
other than Lilly, about whom no such evidence was proffered.
Conclusion
For the foregoing reasons, upon de novo review, the Court finds Magistrate Judge
Azrack's R&R to be correct, well-reasoned, and free of reversible error. The Court, therefore,
adopts the R&R in its entirety, supplemented by this Memorandum and Order, as the opinion of
the Court. Defendants' motion for summary judgment is granted, and plaintiffBezuidenhout's
claims in this action are dismissed.

SO ORDERED.
Dated: Brooklyn, New York
January 6, 2012

s/ ENV

ERICN. vrrA:!Si~NO- = v • u
United States District Judge

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OG