Opinion
Master File 00 Civ. 2843 (LAK).
March 21, 2005
PRETRIAL ORDER NO. 360 ( Anderson — Summary Judgment Motion)
Defendants move for summary judgment on the ground that there is no reliable scientific evidence that Rezulin can cause the non-liver related injuries claim by plaintiff Anderson. Plaintiff responded by claiming in her memorandum of law and her Statement of Disputed Material Facts that purported medical records attached to the latter were evidence of a material issue of fact as to whether she suffered liver injury. In a report and recommendation dated February 28, 2005, Magistrate Judge Gorenstein recommended that the motion be granted.
The Magistrate Judge was of the view that there is no issue of fact as causation of the alleged the non-liver related injury claims and that the claim of liver injury should not be considered because plaintiff's Fact Sheet responses had not claimed any liver injury and never had been amended. Plaintiff now objects to the report and recommendation, arguing only that she has amended her Fact Sheet responses to claim liver injury and that the purported medical records raise an issue of fact as to whether such injury had been sustained.
In view of the lack of objection to so much of the report as recommends dismissal of the non-liver injury claims, the Court adopts the report to that extent. The belated claim of liver injury warrants further discussion.
Plaintiff's attempt to inject a claim of liver injury into the case by amending her Fact Sheet response after the Magistrate Judge rendered his report and recommendation is frivolous. True, PTO 4, ¶ 2, requires supplementation of Fact Sheet responses "if the party learns that [the initial] response is incomplete or incorrect, or if new information responsive to the Fact Sheet becomes known to the party" and imposes no time limit on such supplementation. Plaintiff's difficulty, however, is that the laboratory reports she offers as evidence of liver injury all are dated in 1998 and 1999 and thus years ago. There is no claim that this information just came to her attention or, for that matter, any other excuse for her failure to attach them to, and include a claim of liver injury in, the initial Fact Sheet response, which was due literally years ago. See PTO 2, § 2.5.2.2. Indeed, there is no claim that plaintiff was ignorant of the alleged liver injury claim long before she filed the original Fact Sheet response.
Accordingly, defendants' motion for summary judgment dismissing plaintiff's claims of non-liver injury is granted. As there is no cognizable claim of liver injury, this closes the case.
SO ORDERED.