Opinion
Master File 00 Civ. 2843 (LAK).
March 18, 2005
PRETRIAL ORDER NO. 359 ( Pernell — Summary Judgment)
Defendants moved for summary judgment dismissing the non-liver related injuries claim by plaintiff Pernell on the ground that there is no reliable scientific evidence that Rezulin can cause, those injuries. Plaintiff responded by claiming that he recently learned that one test taken while he was on Rezulin show a marked elevation of AST, one of the liver enzymes elevation of which is associated with 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 that his complaint alleged liver injury and that he should be permitted to amend his Fact Sheet responses to claim liver injury on the basis of the laboratory result.
The fact that the complaint allege liver injury is utterly immaterial. Plaintiff was obliged to list his claimed injuries under oath in his Fact Sheet response. Discovery of this nature is intended to, and routinely does, narrow claims made in pleadings. Moreover, the pleading is not evidence properly considered on a motion for summary judgment. See, e.g., 10A CHARLES ALAN WRIGHT ET AL., FEDERAL PRACTICE AND PROCEDURE: CIVIL 3D § 2711, at 195-97 (1998).
So far as the request for leave to amend the Fact Sheet response is concerned, the first problem is that plaintiff acknowledges that his medical records were in the hands of his attorneys "in late 2003." (Pl. Obj. vi) While the plaintiff himself now claims that he amended his Fact Sheet response promptly after he first learned of the laboratory results in early 2005, that is beside the point. His attorneys had the relevant information well over a year earlier, no amendment was made.
Plaintiff's counsel claim that they tried to contact plaintiff during August and September 2004, a period in which plaintiff claims he was away from home. There is no suggestion, however, that plaintiff's counsel attempted to reach him at any time from late 2003 when they learned of the lab results through July 2004 or from October 2004 through early this year. Counsel therefore were sitting on their hands for at least ten months while they were in possession of the evidence upon which plaintiff now relies during which no effort was made to have plaintiff amend his response.
In ordinary circumstances, these facts would lead the Court to deny leave to amend the Fact Sheet response. In this individual case, however, plaintiff's counsel claims that plaintiff's liver function test results were discussed in settlement discussions with defendants' counsel "throughout 2004." ( Id. vi) That being the case, the Court, in the exercise of discretion, will allow Mr. Pernell's amended Fact Sheet response.
Accordingly, the motion for summary judgment dismissing plaintiff Pernell's non-liver related injuries claim is granted. This does not, however, dispose of the case, as his liver injury claim remains.
SO ORDERED.