Opinion
CASE NO. 09-2051-MD-ALTONAGA
08-31-2016
IN RE: DENTURE CREAM PRODUCTS LIABILITY LITIGATION. This Document Relates to All Cases.
ORDER
CECILIA M. ALTONAGA, UNITED STATES DISTRICT JUDGE
THIS CAUSE came before the Court upon Defendants, The Procter & Gamble Company; The Procter & Gamble Distributing LLC; The Procter & Gamble Manufacturing Company; The Procter & Gamble Commercial LLC; and The Procter & Gamble, Inc.'s (collectively, "P & G['s]" or "Defendants[']") Motion and Memorandum of Law in Support of Summary Judgment ... ("P & G Motion") [ECF No. 2523], filed on July 11, 2016; as well as Pro Se Plaintiff, Michael Ferdik's ("Ferdik['s]") Motion for Summary ... ("Ferdik Motion") [ECF No. 2533], filed on August 19, 2016, which the Court construes as a motion for summary judgment.
On July 27, 2016, Plaintiffs, Lloyd Lien and Michelle Mantia (collectively, the "Parker Waichman Plaintiffs") filed a Memorandum of Law ... ("Response") [ECF No. 2528] in opposition to the P & G Motion. On July 29, 2016, Pro Se Plaintiff Patricio Mamot ("Mamot") sent a letter to the Court, which P & G and the Court construe as a response to the P & G Motion ("Mamot Response"). P & G filed a Reply ... ("Reply") [ECF No. 2530] on August 8, 2016. The Court has carefully considered the parties' submissions, the record, and applicable law. I. BACKGROUND
On July 29, 2016, Ferdik filed a Motion for Summary ... [ECF No. 2529], which the Court construed as a motion for summary judgment and denied for failure to comply with the Local Rules. (See generally Order [ECF No. 2532] ). P & G construed Ferdik's filing as a response to its Motion. (See Reply 1). The Court continues to construe Ferdik's most recent filing as a motion for summary judgment, but even if construed as a response to the P & G Motion, the Court finds the outcome is the same.
Mamot is instructed that in the future, he must file documents directly with the Clerk of Court. No letters, pleadings, motions, or other documents may be sent to the undersigned's chambers.
The parties' submissions also include P & G's Statement of Material Facts ... ("Defendants' SMF") [ECF No. 2524], filed on July 11, 2016; the Parker Waichman Plaintiffs' Response to Statement of Material Facts ... ("Parker Waichman Plaintiffs' SMF") [ECF No. 2528-1], filed on July 27, 2016; and P & G's Omnibus Reply Statement of Material Facts ... ("Defendants' Reply SMF") [ECF No. 2531], filed on August 8, 2016.
The Judicial Panel on Multidistrict Litigation ("JPML") consolidated the present cases in MDL 2051, finding the cases shared questions of fact arising out of the allegation levels of zinc contained in certain brands of denture cream many cause copper deficiency and neurological injuries. (See Defs.' SMF ¶ 1). Only six cases against P & G remain in MDL 2051, brought by the following plaintiffs: Patricio Mamot, Michael Ferdik, Ricardo Tejeda, Anibal Maldonado Valentin, Lloyd Lien, and Michelle Mantia (collectively, the "Remaining Plaintiffs"). (See id. ¶¶ 2–8). Lloyd Lien and Michelle Mantia—the Parker Waichman Plaintiffs—are represented by the law firm of Parker Waichman LLP. (See generally Resp.).
All six of the remaining cases in MDL 2051 were transferred by the JPML to the Court after September 12, 2011. (See Defs.' SMF ¶¶ 2–8). The Parker Waichman Plaintiffs' cases were transferred to the MDL on July 3, 2013 and February 14, 2014. (See id. ¶¶ 7–8). On May 20, 2013, the Court entered an Amended Order ("First Scheduling Order") [ECF No. 2144], stating that by June 3, 2013:
Plaintiffs who filed cases after November 30, 2012 shall identify and serve Rule 26 general causation report(s). Otherwise, these Plaintiffs shall be deemed to rely on the general causation expert reports submitted by Plaintiffs on April 30, 2012, May 30, 2012, August 30, 2012, January 10, 2013, and any submitted by the Plaintiffs regarding Dr. Askari on June 3, 2013. No further Rule 26 general causation expert reports shall be submitted by any Plaintiff after this date.
(Id. 1 (internal footnote omitted)).
A footnote in the First Scheduling Order further noted: "At this time, the parties are not required to conduct case-specific discovery or submit case-specific expert reports for cases filed directly in the MDL or transferred by the JPML to this Court after September 12, 2011." (Id. 1 n.1). The Court repeated this footnote in another Amended Order ("Second Scheduling Order") [ECF No. 2178], entered on July 19, 2013. (See id. 1 n.2).
During expert discovery, the original MDL Plaintiffs ("MDL Plaintiffs") disclosed ten expert witnesses to establish general causation. (See Defs.' SMF ¶ 15). The Remaining Plaintiffs did not disclose any general causation expert witnesses. (See id. ¶ 20; see also Parker Waichman Pls.' SMF ¶ 20). On September 11, 2013, P & G moved to exclude the ten experts' testimony under Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc. , 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). (See Defs.' SMF ¶ 15). On January 28, 2015, the Court granted P & G's motion, excluding all of the MDL Plaintiffs' general causation experts' opinions. (See generally Order (" Daubert Order") [ECF No. 2294] ). After the Daubert Order, the majority of the MDL Plaintiffs stipulated to dismissal for the purpose of appeal, agreeing the Daubert Order was "case-dispositive." (Defs.' SMF ¶ 21; see also Joint Stipulation ... [ECF No. 2310] 5). The Remaining Plaintiffs did not stipulate to dismissal; and the Parker Waichman Plaintiffs took the position they were not subject to the Daubert Order. (See Defs.' SMF ¶ 24).On June 15, 2016, the United States Court of Appeals for the Eleventh Circuit affirmed the Daubert Order. See Jones v. SmithKline Beecham , No. 15–12340, 652 Fed.Appx. 848, 854, 2016 WL 3269459, at *1 (11th Cir. June 15, 2016) (hereinafter, " Jones "). In light of the Eleventh Circuit's affirmance, P & G moves the Court to enter summary judgment against the Remaining Plaintiffs, arguing these Plaintiffs "do not have any legally admissible expert testimony on general causation." (P & G Mot. 2).
II. LEGAL STANDARD
Summary judgment shall be rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law. See FED. R. CIV. P. 56(a), (c). In making this assessment, the Court "must view all the evidence and all factual inferences reasonably drawn from the evidence in the light most favorable to the nonmoving party," Stewart v. Happy Herman's Cheshire Bridge, Inc. , 117 F.3d 1278, 1285 (11th Cir.1997), and "must resolve all reasonable doubts about the facts in favor of the non-movant," United of Omaha Life Ins. Co. v. Sun Life Ins. Co. of Am. , 894 F.2d 1555, 1558 (11th Cir.1990). "An issue of fact is material if it is a legal element of the claim under the applicable substantive law which might affect the outcome of the case." Burgos v. Chertoff , 274 Fed.Appx. 839, 841 (11th Cir.2008) (quoting Allen v. Tyson Foods Inc. , 121 F.3d 642, 646 (11th Cir.1997) (internal quotation marks omitted)). "A factual dispute is genuine ‘if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.’ " Channa Imps., Inc. v. Hybur, Ltd. , No. 07–21516–CIV, 2008 WL 2914977, at *2 (S.D.Fla. July 25, 2008) (quoting Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ).
The movant's initial burden on a motion for summary judgment "consists of a responsibility to inform the court of the basis for its motion and to identify those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact." Fitzpatrick v. City of Atlanta , 2 F.3d 1112, 1115 (11th Cir.1993) (quoting Celotex Corp. v. Catrett , 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (alterations and internal quotation marks omitted)). "[T]he plain language of Rule 56 mandates the entry of summary judgment against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Jones v. UPS Ground Freight , 683 F.3d 1283, 1292 (11th Cir.2012) (alteration added) (quoting Celotex , 477 U.S. at 322, 106 S.Ct. 2548 (alterations and internal quotation marks omitted)).
III. ANALYSIS
The Parker Waichman Plaintiffs argue Jones and the Court's Daubert Order do not apply to them because their cases were filed or transferred to the Court after September 12, 2011; thus, they were "not required to conduct case-specific discovery or submit case-specific expert reports." (First Scheduling Order 1 n.1). The Parker Waichman Plaintiffs argue summary judgment of their cases is premature, and instead, the Court should remand their cases to the transferor courts for final disposition. (See Resp. 7). These arguments fail to persuade.
While the Parker Waichman Plaintiffs were not required to conduct case-specific discovery or submit case-specific expert reports, the First Scheduling Order makes clear any plaintiffs who filed cases after November 30, 2012 were required to identify and serve Rule 26 general causation reports, or else "be deemed to rely on the general causation expert reports submitted by" the other MDL Plaintiffs. (First Scheduling Order 1). Of the Remaining Plaintiffs, Ricardo Tejeda, Anibal Maldonado Valentin, and the Parker Waichman Plaintiffs filed or transferred their cases after November 30, 2012. (See Defs.' SMF ¶¶ 3–8). Yet, none of these Remaining Plaintiffs served any Rule 26 general causation reports, or requested an extension of time in which to do so.
The two other Remaining Plaintiffs, Mamot and Ferdik (both pro se ), were transferred to the MDL on September 13, 2011 and March 27, 2012, respectively. (See Defs.' SMF ¶¶ 3–4).
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The Eleventh Circuit recognizes two broad categories of toxic tort cases: "(1) those where the medical community generally recognizes the toxicity of the substance in question, and (2) those in which it does not recognize the substance as both toxic and causing the plaintiff's alleged injury." Evans v. Matrixx Initiatives, Inc. , No. 3:07–CV–357–J–34JRK, 2009 WL 2914252, at *5 (M.D.Fla. Feb. 18, 2009) (citing McClain v. Metabolife Int'l, Inc. , 401 F.3d 1233, 1239 (11th Cir.2005) ). When dealing with the first category of toxic tort cases, the Court need not undertake an extensive Daubert inquiry as to general causation—whether the substance is capable of causing harm—because the Court merely focuses on specific causation—whether the substance caused harm in the plaintiff's instance. See id. In the second category, the Court must undertake a Daubert inquiry before admitting opinions regarding both general causation and specific causation. See id.
This MDL proceeding clearly falls within the second category, as the medical community does not generally recognize levels of zinc contained in certain brands of denture cream may cause copper deficiency and neurological injuries. (See generally Daubert Order). Thus, Remaining Plaintiffs must prove both general and specific causation via expert testimony. See McClain , 401 F.3d 1233 at 1237 ("To prove their toxic tort claims, Plaintiffs must prove the toxicity of the ephedrine /caffeine combination and that it had a toxic effect on them causing the injuries that they suffered .... This type of proof requires expert testimony ...." (alterations added)). Because Remaining Plaintiffs must prove both forms of causation, the Court may grant summary judgment if it concludes Remaining Plaintiffs have failed to prove either form of causation. See Evans , 2009 WL 2914252, at *9–12 (granting the defendants' motion for summary judgment after finding the plaintiffs' expert opinions on general causation were inadequate and concluding it was unnecessary to even consider the plaintiffs' arguments on specific causation).
Because the Remaining Plaintiffs who filed or transferred their cases after November 30, 2012 did not submit their own Rule 26 general causation reports, they are "deemed to rely on the general causation expert reports submitted by" the other MDL Plaintiffs. (First Scheduling Order 1). As the Court found the general causation expert reports submitted by the other MDL Plaintiffs inadequate in its Daubert Order—which the Eleventh Circuit affirmed in Jones —these Remaining Plaintiffs have failed to prove general causation. Thus, as these Remaining Plaintiffs have failed to establish an essential element of their case, summary judgment is appropriate. See Evans , 2009 WL 2914252, at *11 ("Plaintiffs have offered no evidence of general causation.... This, alone, is enough to warrant granting Defendants' Summary Judgment Motion." (alteration added)).
The Court cannot reach the same conclusion with respect to Mamot and Ferdik. Mamot and Ferdik's cases were filed in or transferred to the MDL before November 30, 2012 (see Defs.' SMF ¶¶ 3–4); thus, the instruction in the First Scheduling Order does not apply to them. It appears Mamot and Ferdik have not yet provided the Court with sufficient general causation evidence to survive summary judgment. (See generally Mamot Resp. (describing anecdotal medical experiences suffered by Mamot; repeating statements by Mamot's treating physicians (not through a formal expert report or affidavit, but simply stated as remembered by Mamot); and describing laboratory test results); see also Ferdik Mot. (providing his medical records; describing his test results; and repeating statements from his doctors). Because the First Scheduling Order did not require them to submit their own Rule 26 general causation reports by a certain date, the best course of action at this point is to give Mamot and Ferdik one more opportunity to present any new expert testimony they may have to prove general causation. Accordingly, by September 30, 2016, Mamot and Ferdik must disclose any new general causation expert evidence on which they intend to rely to oppose summary judgment.
Transferring Remaining Plaintiffs' cases back to their transferor courts in lieu of granting summary judgment, as suggested by the Parker Waichman Plaintiffs (see generally Resp.), is unwarranted. All of Remaining Plaintiffs' cases suffer from the same fatal flaw—failure to prove general causation—a flaw the Court has addressed in multiple orders over the past five years. (See, e.g. , Daubert Order); see also In re Denture Cream Prods. Liab. Litig. , 795 F.Supp.2d 1345 (S.D.Fla.2011). The Court's familiarity with the facts of this MDL counsels toward retaining the cases through summary judgment. See U.S. ex rel. Hockett v. Columbia/HCA Healthcare Corp. , 498 F.Supp.2d 25, 38 (D.D.C.2007) ("This Court's familiarity with the issues in this case—a case which by now encompasses a voluminous docket—as well as the many related issues in the other cases in this MDL, indicates that it would be much more efficient to proceed to summary judgment motions in this Court rather than to ask the transferor court to play catch-up."). Granting summary judgment in light of Remaining Plaintiffs' failure to establish general causation ensures judicial efficiency much more effectively than remanding the cases to district courts around the country, who would then have to learn the tortured factual and procedural histories from scratch.
IV. CONCLUSION
For the foregoing reasons, it is
ORDERED AND ADJUDGED that the P & G Motion [ECF No. 2523] is GRANTED in part and DENIED in part as follows:
1. Summary judgment is entered in favor of Defendants, P & G and against Remaining Plaintiffs, Ricardo Tejeda, Anibal Maldonado Valentin, Lloyd Lien, and Michelle Mantia. Final judgment will be entered by separate order.
2. Summary judgment is not warranted against Remaining Plaintiffs, Patricio Mamot and Michael Ferdik.
3. By September 30, 2016 , Mamot and Ferdik must disclose any new general causation expert evidence on which they intend to rely to oppose summary judgment. At that time, P & G may renew its motion for summary judgment against these two plaintiffs.
4. The Ferdik Motion [ECF No. 2533] is DENIED .
DONE AND ORDERED in Miami, Florida, this 31st day of August, 2016.