Opinion
Master File No. 00 Civ. 2843 (LAK).
March 29, 2005
PRETRIAL ORDER NO. 365 (Non-Liver Injury Claims)
On July 30, 2004, defendants moved for summary judgment dismissing the complaints in these actions on the ground that there is no reliable scientific evidence that Rezulin can cause the non-liver-related injuries claimed by the plaintiffs. In a report and recommendation dated February 28, 2005, Magistrate Judge Gorenstein recommended that the motion be granted. Plaintiffs object in part.
The first of plaintiffs' objections is that their original state court petitions alleged liver and economic injuries and that Judge Gorenstein therefore erred in disregarding the pleadings in favor of their Fact Sheet responses, which alleged only non-liver-related injuries. This argument has been made and rejected repeatedly. See, e.g., PTO No. 359. The simple fact, which plaintiffs' counsel refuses to recognize, is that pleadings are not evidence properly considered on motions for summary judgment whereas the Fact Sheet responses are interrogatory answers and properly considered.
Two of the plaintiffs seek to rely on amendments to their fact sheets, made after the motion for summary judgment was filed, in which they claim liver injuries. In the absence of any showing that the facts upon which these amendments were made were unavailable to these plaintiffs at the time they served their original responses, and there are none, Judge Gorenstein properly disregarded them. See, e.g., PTO Nos. 359, 360.
The Texas plaintiffs object also to so much of the Report and Recommendation as refused to consider their belated claims of economic injury. Judge Gorenstein concluded that such claims should have been, but were not, disclosed in plaintiffs' Fact Sheet responses. Respectfully, this Court disagrees. PTO No. 4, Plaintiff's Fact Sheet, § I(C), upon which the Magistrate Judge relied, required a description of claimed injuries other than bodily injury only of those plaintiffs who did not claim bodily injury. As these plaintiffs all claimed bodily injury, none was required to list the claimed economic injuries.
Finally, the Court notes that plaintiffs do not object to the central conclusion of the Report and Recommendation — that plaintiffs have failed to adduce any admissible evidence of causation of their alleged non-liver-related injuries.
Accordingly, the motion for summary judgment dismissing the complaints is granted to the extent that all claims other than those of the Littlepage Texas plaintiffs for economic injury are dismissed. It is denied as to the claims of the Texas plaintiffs represented by the Littlepage firms for economic injury on theories of breach of warranty and misrepresentation.
SO ORDERED.