Fabian et al v. Bausch & Lomb Incorporated

Filing 15

ORDER granting 14 Motion for Summary Judgment Signed by Chief Judge David C Norton on May 24, 2010.(fulm, )

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA CHARLESTON DIVISION In re Bausch & Lomb Inc. Contacts Lens Solution Products Liability Litigation ) ) ) ) ) This order relates to: ) Case Nos. 2:08-CV-2916-DCN; ) 2:09-CV-1848-DCN; 2:08-CV-1959-DCN; ) 2:09-CV-1877-DCN; 2:07-CV-4071-DCN. ) )

MDL No. 1785 C/A No. 2:06-MN-77777-DCN ORDER

This matter is currently before the court on Bausch & Lomb's motion for summary judgment on all claims and causes of action asserted against it by plaintiffs Phillip Battistone, Cynthia Bertka, Kiavash Kiandoust, Shawn Sexton, and David Simmons (the "remaining non-Fusarium plaintiffs"), who are non-Fusarium plaintiffs inadvertently excluded from Bausch & Lomb's original motion for summary judgment. Bausch & Lomb filed this motion on March 31, 2010, and none of the remaining nonFusarium plaintiffs responded to the motion. In its February 17, 2010 order granting summary judgment in favor of Bausch & Lomb as to nearly all non-Fusarium plaintiffs, the court noted that plaintiffs would be required to prove that Bausch and Lomb's ReNu with MoistureLoc caused the eye infections they experienced. Order at 3. As the court observed, causation can be divided into general causation and specific causation, with proof of general causation being a prerequisite to proving specific causation. Id. at 3-4. Because the court had previously excluded the testimony of Dr. Elisabeth Cohen, plaintiffs' only general causation expert, the court ruled that most non-Fusarium plaintiffs' claims could not survive and granted

Bausch & Lomb's summary judgment motion as to those non-Fusarium plaintiffs. Id. at 4-5. The court has thoroughly reviewed Bausch & Lomb's written submission on the current motion, as well as the substantive law controlling the remaining non-Fusarium plaintiffs' cases. The court sees no distinguishing factors in these cases that would lead to a different result here than the court reached in its February 17, 2010 order. Moreover, none of the remaining non-Fusarium plaintiffs affected by Bausch & Lomb's current summary judgment motion has filed a response. Accordingly, for these reasons and the reasons stated in its February 17, 2010 order, the court GRANTS Bausch & Lomb's motion for summary judgment on all claims and causes of action asserted against it by the remaining non-Fusarium plaintiffs. AND IT IS SO ORDERED.

________________________________________ DAVID C. NORTON CHIEF UNITED STATES DISTRICT JUDGE May 24, 2010 Charleston, South Carolina

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