Williams v. Coca Cola Co.

Filing 93

MEMORANDUM-DECISION & ORDER that defts' 74 Motion for Summary Judgment is GRANTED, and pltf's complaint is dismissed with prejudice. Signed by Magistrate Judge Christian F. Hummel on 6/21/2018. (Copy served upon Cedric Williams via regular mail on 6/21/2018)(see)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK

CEDRIC WILLIAMS,
Plaintiff,
v.

No. 8:15-CV-1534
(CFH)

COCA COLA CO.,
Defendant.

CHRISTIAN F. HUMMEL
U.S. MAGISTRATE JUDGE

APPEARANCES:

OF COUNSEL:

Cedric Williams
10-B-3467
Cayuga Correctional Facility
P.O. Box 1186
Moravia, New York 13118
Plaintiff pro se
Goldberg, Segalla Law Firm
11 Martine Avenue, Ste. 750
White Plains, New York 10606-1934
Attorneys for defendant

MICHAEL D. SHALHOUB, ESQ.
JONATHAN M. BERNSTEIN, ESQ.
MATTHEW S. LERNER, ESQ.

MEMORANDUM-DECISION & ORDER
I. INTRODUCTION
On December 28, 2015, plaintiff pro se Cedric Williams commenced this action
against defendant Coca Cola Co. (“Coca Cola”) pursuant to 28 U.S.C.§1332(a), alleg ing
various state law claims arising from injuries he alleges he sustained as a result of drinking
diet Coca- Cola. Dkt. No. 1 (“Compl.”). Presently before the Court is defendant’s Motion for

Summary Judgment. Dkt. No. 74. Plaintiff filed a response to in opposition. Dkt. No. 74.
Defendant filed a reply. Dkt. No . 85. For the following reasons defendant’s motion for
summary judgment is granted.1

II. BACKGROUND
The facts are viewed in the light most favorable to plaintiff, as the nonmoving party.
Plaintiff has been confined with the New York State Department of Corrections and
Community Supervision (“DOCCS”) since November 16, 2010. Compl. at 2. At all times
herein relevant, he was housed at the Clinton Correctional Facility (“Clinton C.F.”). Id. In
April 2015, Williams received “multiple cans” of diet Coca Cola. Id. After consuming an
unspecified amount of diet Coca Cola, plaintiff experienced migraine headaches and
“periodic moments of impaired vision.” Id. Plaintiff contends that the aspartame contained
in diet Coca Cola he consumed was caused his health problems. See Compl at 2-3.
Further, as a result of drinking diet Coca Cola, he “ suffered personal injuries, migraines,
vision problems, anxiety caused by his fear of developing cancer, emotional distress, and
consequently, insomnia”. Id. at 3. Plaintiff contends that “it’s believed plaintiff’s emotional
injuries are permanent.” Id. Plaintiff’s complaint contains claims against defendant for
negligence, gross negligence, negligent infliction of emotional distress, fraud, and negligent
misrepresentation. Id. at 3-7. Plaintiff demands $2,000,000 “for punitive damages”;
$3,000,000 “for future emotional suffering as a result of continuous fear of developing
cancer”; for a Court order directing defendant “to identify and label all decomposition

1

Parties have consented to have a magistrate judge have jurisdiction over this matter. Dkt. Nos. 42,

43.

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products of food additive (APM), along with amounts, on all of its diet Coca-Cola soft drink
labels and/or discontinue use of (APM) unless defendant meets its burdens under Section
09 of the Federal Food, Drug and Cosmetic Act, 21 U.S.C. 348 to demonstrate that (APM)
is safe and functional for use in its diet soft drinks”; a Court order directing defendant “to
make an immediate public declaration regarding the inherent health risks posed by (APM)
decomposition products contained in its diet Coca-Cola soft drinks on all social media
platforms . . . as well as major news networks CNN, CNBC and HLN.” Id. at 7. Plaintiff also
demands costs. Id.
On March 28, 2016, defendant filed a Motion to Dismiss the Complaint, to which
plaintiff opposed. Dkt. No. 16; Dkt. No. 20. By Decision and Order filed March 31, 2017,
the Court granted defendant’s motion to dismiss the claims for fraud, negligent
misrepresentation, and negligent infliction of emotional harm. Dkt. No. 29 at 11. The Court
denied defendant’s motion as to plaintiff’s claims for negligence, gross negligence, and his
demands of injunctive relief and punitive damages. Id. Plaintiff was granted leave to
amend his Complaint. Id. Plaintiff did not file an amended complaint.
On May 5, 2017, defendant served an answer to the complaint. Dkt. No. 30.
Defendant served an amended answer on May 15, 2017. Dkt. No. 36. On June 2, 2017,
the Court conducted a Rule 16 conference. Dkt. Entry dated June 2, 2017. The Court
issued a Uniform Pretrial Scheduling Order which provides, among other things, that all
discovery be completed by December 29, 2017. Dkt. No 41 at 1. The Order further directs
that ninety days prior to the close of discovery, plaintiff shall identify any experts that may
testify at trial and serve any experts written report on defendant pursuant to Federal Rule of
Civil Procedure (“Fed. R. Civ. P.”) 26(a)(2)(B). Id. at 2.
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During the course of June 2, 2017 conference, the Court had a lengthy conversation
with plaintiff regarding his need to retain an expert or experts, as well as his responsibility to
provide expert disclosure. Text Min. Entry dated June 2, 2017; Dkt. No. 91. The Court
advised plaintiff that in order to proceed to trial, plaintiff must retain an expert who is
qualified to testify in support of his claim that aspartame causes migraine headaches and
may cause cancer. Dkt. No. 91 at 15-16. The Court told Plaintiff that “. . . it is your burden
to come forward with an expert who is going to say that aspartame, in fact, can cause
cancer and can, in fact, cause migraine headaches.” Id. at 16. Plaintiff advised the Court
that he understood his obligation to retain such an expert. Id. at 16-17.
At the June 2, 2017 conference, the Court also discussed with Plaintiff his obligation
to provide expert disclosure. Dkt. No. 91 at 20-21. Plaintiff was advised that he was
required to file expert disclosure ninety days prior to the close of discovery. Id. at 21. As
the deadline for the completion of discovery was December 29, 2017, plaintiff was required
to file his expert disclosure by September 29, 2017. Plaintiff told the Court he understood
his obligation and would meet those requirements. Id.
On November 3, 2017, the Court conducted a conf erence to address various
discovery issues with plaintiff and defense counsel. Dkt. Entry dated Nov. 3, 2017. The
Court issued a Text Order which, among other things, extended the deadline for the
completion of discovery until March 2, 2018. Dkt. No. 69. The Text Order further provided
that the Uniform Pretrial Scheduling Order, Dkt. No. 41, as amended remained in full force
and effect. Id. As such, plaintiff’s expert disclosure was required to be served on defendant
ninety days before the March 2, 2018 discovery deadline. Dkt. No. 41.
On November 13, 2017, defendant filed a motion to compel responses to certain
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outstanding discovery demands, Dkt. No. 70. Plaintiff filed a response. Dkt. No. 71. On
January 10, 2018, the Court conducted a conf erence to address defendant’s motion to
compel. Dkt. No. 70. During the conference, the Court again addressed plaintiff’s burden
of proof and his obligation to provide expert disclosure. Dkt. No. 84. Defense counsel
advised the Court that plaintiff had failed to serve expert disclosure by December 4, 2017 as
required by the Uniform Pretrial Scheduling Order. Dkt. No. 84 at 12. The Court advised
plaintiff that it was his burden of proof to show that defendant was negligent in the use of
aspartame in diet Coca Cola and that he was injured as a result of their use of aspartame.
Id. at 13. The Court told plaintiff: “[A]s I indicated to you, you need to produce an expert to
give that testimony because that is beyond the knowledge of common people.” Id. Plaintiff
told the Court that he understood his obligation and was in the process retaining an expert,
although he had not yet done so. Id. at 13-14. The Court reminded plaintiff that his expert
disclosure was due in December 2017. Id. Plaintiff was further advised that defendant
would be making a motion for summary judgment on a number of grounds, one of which
was plaintiff’s failure to serve expert disclosure. Id.
On January 16, 2018, defendant filed a Motion for Summary Judgment pursuant to
Fed. R. Civ. P. 56 and Local Rule 56.1 of the Northern District of New York. Dkt. No. 74.
Plaintiff filed a response. Dkt. No. 77. On February 16, 2018, defendant filed a reply. Dkt.
No. 88.
On January 31, 2018, plaintiff filed a “Notice of Service of Disclosure Information
Fed. R. Civ. P. 26 (a) (1).” Dkt. No. 78. In that document, plaintiff identifies Dr. Ralph
Walton as an expert witness. Id. at 2. Plaintiff indicates that Dr. Walton will offer testimony
on the documented health risks of aspartame and the link between the ingestion of
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aspartame and injuries such as those complained of by plaintiff. Id. Plaintiff states that
“. . . A written report prepared and signed by him was submitted via email and his reference
as Exhibit A for completion of disclosure.” Id. A copy of that untimely served expert report
has not been provided to the Court.
On March 12, 2018, plaintiff filed a letter inquiring of the status of the Motion for
Summary Judgment and asking whether Dr. Walton’s expert report was attached to the
Court docket. Dkt. No. 86. Defendant filed a response indicating that Coca-Cola had
received no such expert report and objecting to the Court’s consideration of any such report
in deciding the Motion for Summary Judgment. Dkt. No. 87. On March 23, 2018, the Court
issued a Text Order advising that the Court decides motions in the order in which they are
filed and that the Court will only consider those documents which have been timely and
properly filed. Dkt. No. 88.
As of the date of this Memorandum-Decision and Order, the Court has not received
an expert report from Dr. Walton or from any expert witness on behalf of plaintiff. Plaintiff
has failed to submit an affidavit from Dr. Walton in opposition to defendant’s motion for
summary judgment. As such, the Court has not been able to consider a report authored by
Dr. Walton in deciding the pending motion for summary judgment.

III. LEGAL STANDARD
A motion for summary judgment may be granted if there is no genuine issue as to any
material fact, it was supported by affidavits or other suitable evidence, and the moving party
is entitled to judgment as a matter of law. See FED. R. CIV. P. 56. The moving party has the
burden to show the absence of disputed material facts by providing the court with portions
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of pleadings, depositions, and affidavits which support the motion. See FED. R. CIV. P.
56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Facts are m aterial if they may
affect the outcome of the case as determined by substantive law. See Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). “A ‘genuine’ dispute over a material fact only arises
if the evidence would allow a reasonable jury to return a verdict for the nonmoving party.”
Dister v. Cont'l Grp., Inc., 859 F.2d 1108, 1114 (2d Cir. 1988) (citation om itted). All
ambiguities are resolved and all reasonable inferences drawn in favor of the non-moving
party. See Skubel v. Fuoroli, 113 F.3d 330, 334 (2d Cir. 1997). However, “inferences must
be supported by affirmative facts and must be based on relevant, admissible evidence.”
Gen. Accident Ins. Co. of Am. v. Merritt-Meridian Constr. Corp., 975 F.Supp. 511, 515
(S.D.N.Y.1997) (citing FED. R. CIV. P. 56(e)). When a motion for summary judgment is
made and supported . . . an adverse party may not rest upon the mere allegations or
denials of the . . . pleading, but the adverse party's response, by affidavits or as otherwise
provided in [Federal Rule of Civil Procedure 56(e)], must set forth specific facts showing
that there is a genuine issue for trial.” St. Pierre v. Dyer, 208 F.3d 394, 404 (2d Cir. 2000).
“[T]he mere existence of some alleged factual dispute between the parties will not defeat an
otherwise properly supported motion for summary judgment[.]” Rexford Holdings, Inc. v.
Biderman, 21 F.3d 522, 525 (2d Cir. 1994) (citation om itted ).
The party opposing the motion must set forth facts showing that there is a genuine
issue for trial, and must do more than show that there is some doubt or speculation as to
the true nature of the facts. See Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp.,
475 U.S. 574, 586 (1986). For a court to grant a motion for summary judgment, it must be
apparent that no rational finder of fact could find in favor of the non-moving party. See
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Gallo v. Prudential Residential Services, Ltd. P'ship, 22 F.3d 1219, 1223-24 (2d Cir. 1994);
Graham v. Lewinski, 848 F.2d 342, 344 (2d Cir. 1988).
Where, as here, a party seeks judgment against a pro se litigant, a court must afford
the non-movant special solicitude. See Triestman v. Fed. Bureau of Prisons, 470 F.3d 471,
477 (2d Cir. 2006). As the Second Circuit has stated,
[t]here are many cases in which we have said that a pro se
litigant is entitled “special solicitude,”. . . that a pro se litigants
submissions must be construed “liberally,”. . . and that such
submissions must be read to raise the strongest arguments that
they “suggest,”. . . At the same time, our cases have also
indicated that we cannot read into pro se submissions claims
that are not“consistent” with the pro se litigants allegations, . . .
or arguments that the submissions themselves do not “suggest,”
. . . that we should not “excuse frivolous or vexatious filings by
pro se litigants,”. . . and that pro se status “does not exempt the
party from compliance with the relevant rules of procedural and
substantive law. . . .”
Id. (citations and footnotes omitted); see also Sealed Plaintiff v. Sealed Defendant, 537 F.
3d 185, 191-92 (2d Cir. 2008).

IV. LEGAL ANALYSIS
Plaintiff has claims for negligence and gross negligence and demands for injunctive
relief and punitive damages. Dkt. No. 29 at 11. In order to prevail on the negligence and
gross negligence claims, plaintiff must present sufficient evidence to support a finding that
defendant’s product, diet Coca-Cola, caused plaintiff’s injuries. See Smolowitz v. SherwinWilliams Co., No. 02-CV-5940, 2008 W L4862981, at *4 (E.D.N.Y. Nov. 10, 2008).2 To
establish a prima facie case of negligence under New York law, the plaintiff must show that

2

All unpublished decisions cited within this Memorandum-Decision & Order, unless otherwise
indicated, have been provided by the Court to plaintiff pro se.

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the defendant breached a duty owed to plaintiff, and that plaintiff was injured as a result of
that breach. Nussbaum v. Metro-North Commuter R.R., 994 F. Supp. 2d 483,487 (S.D.N.Y.
2014). Proof of causation requires establishing both “general” and “specific” causation. See
Amorgianos v. National R.R. Passenger Corp., 303 F. 3d 256, 268 (2d. Cir. 2002). General
causation focuses on whether the type of injury claimed by the plaintiff may be caused or
exacerbated by the defendant’s product. See Ruggerio v. Warner- Lambert Co., 424 F.2d
249, 251 (2d Cir. 2005). Specific causation focuses on whether, in a particular case, the
plaintiff’s injury was actually caused or exacerbated by the defendant’s product. Id. “[P]roof
of general causation is a necessary predicate for that of specific causation – if there is no
evidence that a product is capable of causing the kind of harm claimed, then there is no
basis to accept evidence that the product in fact did so in a specific case.” In re Rezulin
Prod. Liab. Ltg.,441 F. Supp. 2d 567,575 (S.D.N.Y. 2006) (citing Ruggerio, 424 F.3d at 252
n.1)). Plaintiff must establish both general and specific causation through expert testimony.
See Willis v. Amerada Hess Corp., 379 F. 3d 32, 46 (2d Cir. 2004) (“Where . . . the nexus
between the injury and the alleged cause would not be obvious to the lay juror, ‘[e]xpert
evidence is often required to establish the causal connection between the accident and
some item of physical or mental injury.’”) (quoting Moody v. Maine Cent. R.R. Co., 823 F.2d
693, 695 (1 st Cir. 1987)). In cases where the plaintiff alleges “complex medical issues, in
order for the plaintiff to prove that her alleged injuries were caused by defendants’ products,
she must introduce expert medical testimony establishing causation.” Saari v. Merck & Co,
Inc., 961 F. Supp. 387, 392 (N.D.N.Y. 1997) (citing Fane v. Zimmer, 927 F.3d 124, 131 (2d
Cir. 1991) (additional citations omitted)).
Here, plaintiff has failed to offer any expert opinion to support his claim that
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defendant’s use of aspartame in diet Coca-Cola amounts to negligent conduct. Plaintiff has
also failed to offer any expert opinion to support his general and specific causation
allegations. Plaintiff has failed to produce any evidence that the aspartame in diet CocaCola may cause or exacerbate any of the injuries claimed by plaintiff. There is no evidence
before the Court to establish the plaintiff’s alleged injuries were caused or exacerbated by
defendant’s product. The only expert proof before the Court is provided by defendant’s
experts, Dr. Peter Spencer, Dkt. No. 74-5, and Dr. Richard Adamson, Dkt. No. 74-4, who
opine that there is no scientifically-reliable evidence which supports plaintiff’s claim that the
aspartame in diet Coca-Cola caused any of plaintiff’s alleged injuries. Given plaintiff’s failure
to offer any expert proof on the issue of general and/or specific causation, defendant’s
motion for summary judgment is granted and plaintiff’s complaint is dismissed with
prejudice.

V. CONCLUSION
Accordingly, for the reasons stated herein, is hereby:
ORDERED, that defendants motion for summary judgment, Dkt. No. 74, is
GRANTED, and plaintiff’s complaint is dismissed with prejudice, and it is further
ORDERED, that the Clerk of the Court serve a copy of this Decision and Order on all
parties in accordance with the Local Rules.
IT IS SO ORDERED.
Dated: June 21, 2018
Albany, New York

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