Mazzei et al v. Abbott Laboratories et al

Filing 58

MEMORANDUM AND ORDER. The Court adopts the 56 Report and Recommendation of Magistrate Judge Joan Azrack filed on 3/13/12 in its entirety as the opinion of the Court. Plaintiff's motion for partial summary judgment based on collateral estoppel is granted in part and denied in part such that defendant Eli Lilly and Company is estopped from contesting the Bichler jury findings (1), (3), (4), and (5). The Joint Pretrial Order remains due by 4/13/12 and trial remains scheduled to begin on 4/23/12. So Ordered by Judge Eric N. Vitaliano on 4/2/2012. (Manuel, Germaine)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

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STEPHANIE MAZZEI,

BROCKLYi'i OFFICE

MEMORANDUM AND ORDER
Plaintiff,
10-CV-2233 (ENV) (JMA)
-againstTHE ABBOTT LABORATORIES & CO., eta!.,
Defendants.

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DOROTHEA WOODS-GASTON,

Plaintiff,
10-CV-1011 (ENV) (JMA)
-againstTHE ABBOTT LABORATORIES & CO., eta!.,
Defendants.
_________________________________________________________________ ]{

VITALIANO, D.J.
In 2010, Stephanie Mazzei and Dorothea Woods-Gaston (collectively, "plaintiffs") filed
suit against various drug companies including Eli Lilly and Company ("Lilly"), (Compl., No. I 0CV-2233 (E.D.N.Y.), ECF No. I; Compl., No. 10-CV-1011 (E.D.N.Y.), ECF No.!.), asserting
that the defendant drug companies are liable for injuries plaintiffs sustained as the result of in
utero e]{posure to the prescription medication diethylstilbestrol ("DES"), which each of the

defendants formerly manufactured and marketed. (See generally Compl., No. I 0-CV -2233;

I

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Compl., No. 10-CV-1011.) A trial between plaintiffs and Lilly, the only remaining defendant,' is
scheduled to begin on April23, 2012. Pending now before the Court is plaintiffs' opposed
motion for partial summary judgment in which plaintiffs argue that Lilly should be estopped
from contesting jury findings (1), (3), (4), (5) and (6) from Bichler v. Eli Lilly & Co., 55 N.Y.2d
571, 450 N.Y.S.2d 776, 436 N.E.2d 182 (1982). 2 The motion was referred to Magistrate Judge
Joan M. Azrack for a Report and Recommendation. Judge Azrack's Report and
Recommendation (the "R&R") issued on March 13,2012, and recommended that the motion be
granted in part and denied in part such that Lilly would be estopped from contesting Bichler jury
findings(!), (3), (4), and (5).
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). And, 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 110, 116 (2d Cir. 2010). But,

1

Plaintiffs have represented that "Since this motion has been made, all defendants, other than Eli
Lilly, have settled, and Eli Lilly is the only defendant going to trial." (10-cv-02233, ECF No.
46-5, at 1.)
2

The Bichler jury answered each of the following seven interrogatories in plaintiffs favor:"(!)
Was DES reasonably safe in the treatment of accidents of pregnancy when it was ingested by
plaintiffs mother in 1953? (2) Was DES a proximate cause of plaintiff's cancer? (3) In 1953
when plaintiffs mother ingested DES, should the defendant, as a reasonably prudent drug
manufacturer, have foreseen that DES might cause cancer in the offspring of pregnant women
who took it? (4) Foreseeing that DES might cause cancer in the offspring of pregnant women
who took it, would a reasonably prudent drug manufacturer test it on pregnant mice before
marketing it? (5) If DES had been tested on pregnant mice, would the tests have shown that DES
causes cancer in their offspring? ( 6) Would a reasonably prudent drug manufacturer have
marketed DES for use in treating accidents of pregnancy at the time it was ingested by the
plaintiff's mother if it had known that DES causes cancer in the offspring of pregnant mice? (7)
Did defendant and the other drug manufacturers act in concert with each other in the testing and
marketing of DES for use in treating accidents of pregnancy?" Bichler, 55 N.Y.2d at 587 n.l 0.

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where no timely objection has been made, the district "court need only satisfy itself that there is
no clear error on the face of the record" to accept a magistrate judge's Report and
Recommendation. 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)).
No party has objected. And, after careful review of the record, the Court finds the R&R
to be correct, well-reasoned, and free of any clear error. The Court, therefore, adopts the R&R in
its entirety as the opinion of the Court. Plaintiffs' motion for partial summary judgment based
on collateral estoppel is granted in part and denied in part such that Lilly is estopped from
contesting Bichler jury findings (I), (3), (4), and (5).
The Joint Pretrial Order remains due by Aprill3, 2012 and trial remains scheduled to
begin on April23, 2012.

SO ORDERED.
Dated:

Brooklyn, New York
April 2, 2012

s/ ENV

'5'irnvf1AL\'1\.No
United States District Judge

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