Opinion
Civil Action No. 00-3513 Section "C" (4).
September 13, 2004
ORDER AND REASONS
Before the Court is Motion by plaintiffs for reconsideration by the trial court of ruling on motion for leave to amend complaint entered by Magistrate Judge on November 14, 2003. (Rec. Doc. 470). Also, before the Court are a Motion by Metabolife International, Inc. and Mike Ellis for summary judgment regarding Carly A. Cinquemano (Rec. Doc. 610); a Motion by Metabolife International, Inc. and Mike Ellis for summary judgment regarding Beverly Courtney (Rec. Doc. 612); and a Motion by Metabolife International, Inc. and Mike Ellis for summary judgment regarding Narvelle Courtney (Rec. Doc. 613).
After a thorough review of the law, the record, the Motions, and the memoranda filed in support thereof and in opposition thereto, the Motion by plaintiffs for reconsideration by the trial court of ruling on motion for leave to amend complaint entered by Magistrate Judge on November 14, 2003 is DENIED (Rec. Doc. 470); the Motion by Metabolife International, Inc. and Mike Ellis for summary judgment regarding Carly A. Cinquemano is GRANTED (Rec. Doc. 610); the Motion by Metabolife International, Inc. and Mike Ellis for summary judgment regarding Beverly Courtney is GRANTED (Rec. Doc. 612); and the Motion by Metabolife International, Inc. and Mike Ellis for summary judgment regarding Narvelle Courtney is GRANTED(Rec. Doc. 613)
I. Plaintiffs' Motion for Reconsideration by the Trial Court of Ruling on Motion for Leave to File Third Amendment to Class Action Complaint for Damages
On November 14, 2003, Magistrate Judge Alma Chasez Denied Plaintiffs' Motion to Leave to File Third Amendment to Class Action Complaint for Damages. On November 24, 2003, Plaintiffs filed a Motion for Reconsideration by the Trial Court of Ruling on Motion for Leave to Amend Complaint Entered by Magistrate Judge on November 14, 2003.
A District Court reviews a magistrate judge's order under a clearly erroneous standard. 28 U.S.C. § 636(b); Castillo v. Frank, 70 F.3d 382, 385-86 (5th Cir. 1995). A finding is clearly erroneous if, after reviewing the entire record, the reviewing court "is left with the definite and firm conviction that a mistake has been committed." Anderson v. City of Bessemer, 470 U.S. 564 (1985). Under this standard the reviewing court must defer to the trial court's decision considered against the entirety of the record, and may not merely substitute its opinion for that of the trial court. NAACP v. Fordice, 252 F.3d 361, 365 (5th Cir. 2001). Moreover, the reviewing court may affirm on grounds other than those relied upon by the trial court. J.B.N. v. Homco Int'l, Inc., 853 F.2d 337, 345 (5th Cir. 1988).
Rule 15 of the Federal Rules of Civil Procedure Provides that, Except in some circumstances that are not meet here, "a party may amend a party's pleading only by leave of court or by written consent of the adverse party; and leave shall be given freely when justice so requires." F.R.C.P. 15.
Leave to amend under Rule 15 is by no means automatic. Goldstein v. MCI WorldCom, 340 F.3d 238, 254 (5th Cir. 2003). Courts should deny leave when the moving party is engaged in undue delay, or has attempted by dilatory tactics to present new theories of recovery to the district court. Id. Courts should also deny leave because of repeated failures to cure deficiencies by amendments previously allowed, or undue prejudice to the opposing party by allowance of an amendment. Id.
"An amendment that a party raises late in the pre-trial life of a lawsuit has a significant tendency to disrupt proceedings." Little v. Liquid Air Corp., 952 F. 2d 841, 845 (5th Cir. 1992). If the delay in filing a motion for leave to amend is particularly egregious — such as waiting more than one year to file the request to amend, or waiting until after a motion for summary judgment has been filed — the burden shifts to the moving party to demonstrate that the delay was "due to oversight, inadvertence, or excusable neglect." Id.; Gregory v. Mitchell, 634 F.2d 199, 203 (5th Cir. 1981).
A motion for leave is not automatically timely merely because it is filed before the deadline set in the court's scheduling order. S W Enterprises, L.L.C. v. South Trust Bank of Alabama, NA, 315 F.3d 533 (5th Cir. 2003). Filing within the scheduling order merely prevents the plaintiff from having to satisfy both the requirements of Rule 15 and Rule 16 before obtaining leave. Southwestern Bell Telephone Co. v. City of El Paso, 346 F.3d 541, 546 (5th Cir. 2003).
At the time Plaintiffs filed their Motion for Leave to File Third Amendment to Class Action Complaint for Damages, this litigation had been proceeding for nearly three years. The Plaintiffs filed this motion only after the Court granted summary judgment against Plaintiffs David Brewer, Vera Brooks, and Alicia Lucas Price on October 7, 2003. (Rec. Doc. 393). Defendant has had pending over twenty other motions for summary judgment against other individual plaintiffs based almost entirely on the same issue defendant succeeded in arguing on October 7, 2003. Also, Plaintiffs have previously been allowed to amend their complaint twice.
Not only would allowing Plaintiffs to amend their complaint have caused undue delay to this litigation, it would unduly prejudice Defendants who would be required to undergo a new round of extensive discovery and postpone the trial indefinitely.
As such, because the Court agrees with the Magistrate Judge, the Court does not find that the Magistrate Judge committed clear error.
II. THE MOTIONS FOR SUMMARY JUDGMENT
A. Background
The Plaintiffs in this action allegedly are all former users of the weight loss supplement Metabolife 356. Plaintiffs have alleged that the Defendants, Metabolife International, Inc. and Mike Ellis, have violated the Louisiana Products Liability Act by failing to warn the Plaintiffs of an unreasonably dangerous condition of their product, Metabolife 356 — namely, the presence of ephedra in Metabolife 356. While the severity and extent of the harm allegedly occasioned each plaintiff varies significantly from person to person, Plaintiffs claim that they have suffered injury due to their ingestion of Metabolife 356 and seek damages as well as injunctive relief.
B. Standard of Review
A district court can grant a motion for summary judgment only when the "`pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.'" Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (quoting Fed.R.Civ.P. 56 (c)). When considering a motion for summary judgment, the district court "will review the facts drawing all inferences most favorable to the party opposing the motion." Reid v. State Farm Mut. Auto. Ins. Co., 784 F.2d 577, 578 (5th Cir. 1986). The court must find "[a] factual dispute . . . [to be] `genuine' if the evidence is such that a reasonable jury could return a verdict for the nonmoving party . . . [and a] fact . . . [to be] `material' if it might affect the outcome of the suit under the governing substantive law." Beck v. Somerset Techs., Inc., 882 F.2d 993, 996 (5th Cir. 1989) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).
"If the moving party meets the initial burden of showing that there is no genuine issue of material fact, the burden shifts to the non-moving party to produce evidence or designate specific facts showing the existence of a genuine issue for trial." Engstrom v. First Nat'l Bank of Eagle Lake, 47 F.3d 1459, 1462 (5th Cir. 1995) (citing Celotex, 477 U.S. at 322-24, and Fed.R.Civ.P. 56(e)). The mere argued existence of a factual dispute will not defeat an otherwise properly supported motion. See Anderson, 477 U.S. at 248. "If the evidence is merely colorable, or is not significantly probative," summary judgment is appropriate. Id. at 249-50 (citations omitted).
C. Law and Analysis
Defendants argue that summary judgment is appropriate because these Plaintiffs have failed to create a genuine issue of material fact regarding the issue of specific causation — in other words, whether the ingestion of Metabolife 356 caused the injuries from which Plaintiffs now claim to suffer. Defendants do not argue that these Plaintiffs did not ingest Metabolife 356 at some point or that Metabolife 356 could not cause, in the general population, the effects that these Plaintiffs claim to suffer from. Instead, they argue that Plaintiffs failed to establish that Metabolife 356 caused these effects in these particular Plaintiffs.
Under Louisiana jurisprudence, the plaintiff in a personal injury suit, including suits under the Louisiana Products Liability Act, bears the burden of proving by a preponderance of the evidence a causal relationship between his or her injury and the accident or use of the product. Maranto v. Goodyear Tire Rubber Co., 94-2603 (La. 2/20/95), 650 So.2d 757, 759. The test for determining the causal relationship between the accident and subsequent injury is whether the plaintiff proved through medical testimony that it is more probable than not that the subsequent injuries were caused by the accident. Id.
Proof of causation has two components, general and specific. Pick v. American Medical Systems, Inc., 958 F.Supp. 1151, 1164 (E.D. La. 1997). General causation deals with whether the substance at issue can cause diseases or disorders in people in general. Id. Specific causation focuses upon whether the substance was in fact the cause of the ailments or symptoms in the particular patient. Id. An inability to establish specific causation is fatal to Plaintiff's claim. Id. at 1163.
Plaintiffs argue that Maranto and Pick are neither binding nor applicable in cases where the treating physician is not an expert on Metabolife 356, and also that the legal burden should shift to Defendant in accordance to Housley v. Cerise, 579 So.2d 973, 978 (La. 1991). The Court will address these arguments before it examines whether each individual Plaintiff has created a genuine issue of material fact with respect to the issue of specific causation.
First, Plaintiffs argue that Maranto and Pick merely "contain dicta to the effect that" a plaintiff must prove causation with medical testimony. (Rec. doc. 620, p. 4; 622, p. 5; 623, p. 4). The Court disagrees. The proposition in Maranto and Pick that proof of actual causation requires medical testimony is not dicta but rather a holding on which this Court has based a previous ruling dismissing the claims of other plaintiffs in this very case. (Rec. doc. 393, p. 4). Also, Plaintiffs suggest that Maranto and Pick do not provide precedent for situations such as theirs, where the treating physician is not familiar with ephedra and caffeine combinations. This is because, of course, a treating physician lacking the requisite expertise would therefore be unqualified and therefore unable to testify that Metabolife 356 was the specific cause of the harm. The Court agrees that the law does not require a doctor with little knowledge of a substance to provided expert testimony on the effects of that substance. However, this does not relieve a plaintiff of his burden to provide evidence from a medical expert who does have sufficient knowledge. Maranto and Pick require medical testimony of specific causation. It need not be from the treating physician.
Second, Plaintiffs argue that the burden should be shifted to Defendant Metabolife under Housley (the "Housley Presumption"). The Supreme Court of Louisiana wrote in Dabog v. Deris, 625 So.2d 492, 493 (La. 1993):
In a personal injury suit, the plaintiff must prove causation by a preponderance of the evidence. (Citations omitted). The plaintiff is aided in it proof burden by a presumption described by this court in Housley v. Cerise, 579 So.2d 973, 980 (La. 1991) ( Quoting Lucas v. Insurance Company of North America, 342 So. 2d 591, 596 (La. 1977), wherein we stated:
"[a] claimant's disability is presumed to have resulted from an accident, if before the accident the injured person was in good health, but commencing with the accident the symptoms of the disabling condition appear and continuously manifest themselves afterwards, providing that the medical evidence shows there to be a reasonable possibility of causal connection between the accident and the disabling condition."
The Court finds that the test for the Housley presumption, even if it were applicable in this situation, is not satisfied under these facts. The Housley presumption will not be met if the injury only gradually arises from the accident. According to Whiteman v. Worley, the "symptoms must commence `with' the accident." Whiteman, 688 So.2d 207, 211. Whiteman noted the "close temporal relationship" between the accident and injury in Housley, and refused to apply the Housley presumption to facts in which an injury arose not "with" an incident but ten days later. Id. It is questionable whether Housley should even apply to a situation where injury allegedly arises not from one incident, as in most personal injury suits and Housley, but from repeated behavior, such as the regular use of dietary supplements. The Housley presumption makes sense in situations involving a single incident because a reasonable person, presumably, would not continually repeat behavior that had a close temporal relationship with an injury. Conversely, the Housley presumption is not easily applied in situations where injury allegedly arises not from a single "accident" or incident but rather from a series of incidents which, for that matter, where not "accidental." Even if the continued use of Metabolife 356 were considered an "accident" for the purposes of the Housley presumption, the facts in this case do not present a sufficiently close temporal relationship between the accident and the injury. Here, Plaintiffs do not complain of injury commencing "with" the act of ingesting Metabolife 356 within the meaning of Whiteman, but rather claim injury arising over an extended period of use. Therefore, Housley does not switch the burden to Defendant, and the burden remains on Plaintiffs to prove through medical testimony that Metabolife is the actual cause of injury.
Having discussed Plaintiffs's common arguments, the Court now turns to the evidence presented for each individual plaintiff in order to determine whether their burden is satisfied.
D. Carley Cinquemano
Plaintiff Carley Cinquemano claims that she suffered heart damage, heart attack-like symptoms, chest pains, depressions, dizziness, diarrhea, and headaches as a result of her ingestion of Metabolife 356. (Rec. doc 620, Exhibit A). As evidence, she presents records of a visit to the emergency room for chest pain, and her own declaration indicating that Metabolife 356 caused her injuries. Cinquemano provides no medical testimony to prove that it is more probable than not that her injuries resulted from Metabolife 356. She is not a doctor and is not qualified to present medical testimony. Furthermore, her hospital records make no claims regarding the cause of her chest pains. Accordingly, Cinquemano fails to provide any medical evidence tending to prove specific causation.
E. Beverly Courtney
Plaintiff Beverly Courtney claims that she suffered from seizures while taking Metabolife 356 during the summer of 1996. She had suffered seizures in the past as well, but always after taking other forms of diet medication. She was treated at the Southwest Mississippi Regional Medical Center on September 6, 1996 for complaints of a seizure, and again in 1997 at Field Memorial Hospital. It is clear from her medical history with diet medication that Metabolife 356 could have caused her seizures. This satisfies the general causation prong of Pick. However, for her claim to succeed, she must provide evidence of specific causation. To this end, Plaintiff Beverly Courtney has provided her own declaration indicating that Metabolife 356 caused her seizures, and an affidavit submitted by Dr. Richard Gold in opposition to a summary judgment motion directed to one Kasey McMillian, another plaintiff in this case. (Rec. doc. 620, pp 2-3). In his affidavit, Dr. Gold states presents his medical qualifications and states:
I have reviewed the available information including the medical records, declarations, answers to interrogatories, request for admissions, and production of documents for Kasey McMillian and find that the adverse physical effects claimed by this person are definitely consistent with consumption of Metabolife 356.
Id. Plaintiff Beverly Courtney claims that her injury is "exactly like" that of Kasey McMillian, which is to say, they both suffered seizures after using Metabolife 356. (Rec. doc. 623, p. 3). Again, the Court finds that this is clear evidence that Metabolife could have caused a seizure in Beverly Courtney, just as Dr. Gold claims it did in Kasey McMillian. However, Dr. Gold did not examine Beverly Courtney or her medical records, nor does he state in his affidavit that Metabolife 356 tends to cause seizures in all those who use it. Dr. Gold's affidavit speaks only to Kasey McMillian. It is not sufficient as medical evidence to show that Metabolife 356 more probably than not caused seizures in Beverly Courtney. Furthermore, as with Carley Cinquemano, Beverly Courtney is not a doctor and her declaration stating that Metabolife 356 caused her injuries does not qualify as medical evidence. Therefore, Plaintiff has failed to meet her burden because she has provided no medical evidence of actual injury.
F. Narvelle Courtney
Plaintiff Narvelle Courtney claims that she suffered irregular heartbeat, thyroid trouble and high blood pressure as a result of taking Metabolife 356. As evidence of causation, Plaintiff provides her own declaration and an excerpt from a deposition by Dr. Harris Lappin given in a Daubert hearing in this case. Dr. Lappin testified that ephedra supplements, like Metabolife 356, are "potentially bad for the body" because they can prompt irregular heartbeats. (Rec. doc. 622, p. 3). Dr. Lappin was not speaking about any particular person or patient. In fact, he testified that he could not say that ephedra supplements in general cause such injury, but instead that he "would have to look at an individual case" to see if a person's injury is related to ephedra supplements. Id. Dr. Lappin's testimony is evidence of general causation. It does not go towards specific causation. It does not demonstrate, nor was it intended to demonstrate, that Metabolife 356 more probably than not caused injury to Narvelle Courtney. Furthermore, Narvelle Courtney is not a doctor, and therefore, as with the other Plaintiffs, she is not qualified to provide medical evidence of causation. Absent medical evidence of specific causation, Plaintiff's claim cannot meet its burden of proof under Pick.
IV. CONCLUSION
Accordingly, the Motion by plaintiffs for reconsideration by the trial court of ruling on motion for leave to amend complaint entered by Magistrate Judge on November 14, 2003 is DENIED (Rec. Doc. 470); the Motion by Metabolife International, Inc. and Mike Ellis for summary judgment regarding Carly A. Cinquemano is GRANTED (Rec. Doc. 610); the Motion by Metabolife International, Inc. and Mike Ellis for summary judgment regarding Beverly Courtney is GRANTED (Rec. Doc. 612); and the Motion by Metabolife International, Inc. and Mike Ellis for summary judgment regarding Narvelle Courtney is GRANTED (Rec. Doc. 613).