Kerlinsky v. Sandoz Inc.

• Decision Date: 09 May 2011
• Docket Number: C.A. No. 09–cv–30136–MAP.
• Citation: 783 F.Supp.2d 236
• Parties: Louis KERLINSKY, Plaintiffv.SANDOZ INC., et al., Defendants.
• Court: U.S. District Court — District of Massachusetts

783 F.Supp.2d 236

Louis KERLINSKY, Plaintiff

v.SANDOZ INC., et al., Defendants.

C.A. No. 09–cv–30136–MAP.

United States District Court, D. Massachusetts.

May 9, 2011.

Eric D. Beal, Jeffrey E. Poindexter, Bulkley, Richardson & Gelinas, LLP, Karen L. Goodwin, United States Attorney's Office, Springfield, MA, Dana Alan Gausepohl, Michael R. Keenan, Stephen A. Klein, Hollingsworth LLP, Washington, DC, for Defendants.

MEMORANDUM AND ORDER REGARDING DEFENDANT SANDOZ'S MOTION FOR SUMMARY JUDGMENT, DEFENDANT SANDOZ'S MOTION TO STRIKE PLAINTIFF'S EXPERT DISCLOSURE, DEFENDANT USDVA'S MOTION TO STRIKE EXPERT DISCLOSURE, DEFENDANT USDVA'S MOTION FOR SUMMARY JUDGMENT, AND DEFENDANT SANDOZ'S MOTION FOR JUDGMENT ON THE PLEADINGS (Dkt. Nos. 64, 67, 69, 71, and 73)

PONSOR, District Judge.

I. INTRODUCTION

Plaintiff Louis Kerlinsky, acting pro se, brings this products liability suit against Defendants Sandoz, Inc. (“Sandoz”) and the United States Department of Veteran's Affairs (“USDVA”) ¹ for personal injuries allegedly sustained after taking medication manufactured by Defendant Sandoz and prescribed by a hospital that Defendant USDVA operates.² The sole remaining counts in the twelve-count complaint are Counts 1 and 2 against Defendant Sandoz for, respectively, breach of warranty and negligent failure to warn, and Count 6 against Defendant USDVA for negligent failure to obtain informed consent.

Presently before this court are Defendant Sandoz's Motion for Summary Judgment as to Causation (Dkt. No. 64), Defendant Sandoz's Motion to Strike Plaintiff's Expert Disclosure (Dkt. No. 67), Defendant USDVA's Motion to Strike Expert Disclosure (Dkt. No. 69), Defendant USDVA's Motion for Summary Judgment (Dkt. No. 71), and Defendant Sandoz's Motion for Judgment on the Pleadings (Dkt. No. 73). For the reasons stated below, Defendants' motions to strike expert disclosure (Dkt. Nos. 67 & 69) and motions for summary judgment (Dkt. Nos. 64 & 71) will be allowed. Given these rulings, Defendant Sandoz's Motion for Judgment on the Pleadings (Dkt. No. 73) will be denied as moot.

II. FACTUAL BACKGROUND

The relevant facts, viewed in the light most favorable to Plaintiff, are as follows.

Intermittently throughout 2005, Plaintiff visited an outpatient clinic operated by Defendant USDVA in Springfield, Massachusetts. The clinic prescribed and furnished to Plaintiff several medications, including Terazosin HCL, Flovent, Felodipine, Allopurinel, Finasteride, Aricept, Loratadine, aspirin, Lactase, eardrops, multivitamins, suppositories, sertaline, nasal spray, and carbonide peroxide.³ Of primary importance here is the prescription of Terazosin HCL, a medicine manufactured by Defendant Sandoz and prescribed to Plaintiff by Defendant USDVA to treat high blood pressure and an enlarged prostate gland.

On September 21, 2005, and again on October 21, 2005, Defendant USDVA provided to Plaintiff ten pages of medical literature, including the following description of Terazosin:

It is used to treat high blood pressure (hypertension) ... symptoms of prostate enlargement. Take the first dose at bedtime to minimize the changes of getting dizzy or fainting. PRECAUTIONS: To avoid dizziness or fainting get up slowly from a lying or seated position especially when you first start using this drug.

(Dkt. No. 1, Compl. ¶ 15.) The literature also warned that “lightheadedness or dizziness upon standing may occur, especially after the first dose.” ( Id. ¶ 22.) Plaintiff alleges that the only warning on the vials of Terazosin HCL prescribed to him was as follows: “May cause drowsiness.” ( Id. ¶ 17.)

On September 1, 2006, Plaintiff was visiting his sister-in-law in Philadelphia, Pennsylvania. At approximately 5:00 p.m., Plaintiff ingested for the first time one capsule of Terazosin HCL. At approximately 7:00 p.m., Plaintiff's heart stopped beating, and he stopped breathing. He was taken by ambulance to Lankenau Hospital in Wynnewood, Pennsylvania. Plaintiff was discharged from the hospital four days later, on September 5, with instructions to have a pacemaker surgically implanted in his chest. He incurred over $41,000 in medical bills as a result of his hospital visit.

Between September 5 and September 8, Plaintiff was examined and tested at Baystate Medical Center (“Baystate”) in Springfield, Massachusetts, to determine whether he was a good candidate for a pacemaker. On September 8, Baystate informed Plaintiff that he did not need a pacemaker.

Plaintiff alleges that the September 1, 2006, episode was caused by Terazosin HCL and that Defendants failed to adequately warn him of its possible side effects. Plaintiff demands $700,000 in damages.

III. PROCEDURAL BACKGROUND

On March 26, 2010, 2010 WL 1257857, this court adopted in part Magistrate Judge Kenneth P. Neiman's Report and Recommendation concerning Defendants' motions to dismiss. (Dkt. No. 29.) The court dismissed all counts against Defendant Lankenau (eliminating Counts 9, 10, and 11 from the complaint) as well as Counts 3, 4, and 5 against Defendant Sandoz. The court denied Defendant Sandoz's motion as to Counts 1 (breach of warranty) and 2 (negligence) insofar as those counts relied on a failure-to-warn theory. The court declined to adopt the Magistrate Judge's recommendation that Count 7 be dismissed sua sponte along with the portions of Count 12 offering class action allegations against Defendant USDVA. However, on November 4, 2010, 2010 WL 4450450, the court adopted a second report and recommendation by Judge Neiman and allowed Defendant USDVA's motion to dismiss Counts 7, 8, and 12. The court noted, in its memorandum, that the quotations from case law relied upon by Plaintiff to oppose the motion did not, in fact, appear in the cases cited. (Dkt. No. 51.)

At a scheduling conference less than a week following the dismissal of Counts 7, 8, and 12, Judge Neiman pointed out to Plaintiff that he had failed to comply with Federal Rule 26 governing expert disclosure regarding the remaining counts. See Fed.R.Civ.P. 26(a)(2)(B). Plaintiff had submitted a letter purportedly written by his daughter, Dr. Susan Kerlinsky, who practiced family medicine.⁴ (Dkt. No. 68, Ex. 1, Kerlinsky Statement at 1.) The letter consisted, in its entirety, of two sentences setting forth the author's conclusion that Plaintiff's injuries resulted from his use of Terazosin. ( Id.) At the conference, Judge Neiman explained in detail the requirements of Rule 26 and gave Plaintiff until December 31, 2010, to submit a revised expert report. (Dkt. No. 68, Ex. 3, Tr. 11/10/10, at 4–6.)

On December 13, 2010, Plaintiff submitted a supplemental statement, again purportedly written by Dr. Susan Kerlinsky. (Dkt. No. 68, Ex. 2, Kerlinsky Supp. Statement.) He submitted no other statements or reports by the December 31 deadline. Defendants then filed the motions currently pending in this case. On January 26, 2011, Judge Neiman allowed Defendants' Joint Motion to Stay Discovery Pending Disposition of Motions to Strike and Motions for Summary Judgment (Dkt. No. 66).

IV. DISCUSSION

A. Defendants' Motions to Strike Plaintiff's Expert Disclosure (Dkt. Nos. 67 & 69).

Defendants have filed separate motions seeking to strike the supplemental expert statement of Dr. Kerlinsky (Dkt. Nos. 67 & 69.), on the ground that it fails to comply with the requirements of Fed.R.Civ.P. 26(a)(2)(B). For the reasons that follow, this court agrees.

Rule 26 requires that an expert report contain the following: (1) a complete statement of all opinions the witness will express and the basis and reasons for them; (2) the facts or data considered by the witness in forming each opinion; (3) any exhibits that will be used; (4) the witness's qualifications; (5) a list of all other cases in which the witness testified as an expert in the previous four years; and (6) a statement of the compensation to be paid for his or her testimony. See Fed.R.Civ.P. 26(a)(2)(B)(i)-(vi).

Here, Dr. Kerlinsky's supplemental statement represents only a slight improvement over her initial two-sentence statement and still falls far short of the requirements of Rule 26. The most recent statement comprises three brief, handwritten pages. Given that the first page contains only one sentence, which simply lists the requirements of Rule 26, the substance of the report is limited to two handwritten pages. This submission is deficient for several reasons.

First, it does not contain a complete statement of all opinions the witness will express and the basis and reasons for them. See Fed.R.Civ.P. 26(a)(2)(B)(i). Dr. Kerlinsky's opinion is clear enough: “the 8 days of hospitalization in 9–1–06 to 9–8–06 were a result of the Terazosin [Plaintiff] took on 9–1–06....” (Dkt. No. 68, Ex. 2, Kerlinsky Supp. Statement at 2.) However, the basis and reasons for that opinion are not. The relevant portion of Dr. Kerlinsky's report reads:

The basis and reasons for my above opinions are my education and experience including graduating from Harvard College and N.Y.U. medical school and my continuing education and studies including my readings pertaining to Terazosin. The basis for my opinion that the first dose of Terazosin manufactured by Sandoz and prescribed by the VA clinic in Spfld caused Louis Kerlinsky's syncope, loss of consciousness, heart stoppage and breathing stoppage is that it is well known and admitted by the VA in its literature on Terazosin that a first dose of Terazosin can cause loss of consciousness, heart stoppage and breathing stoppage. There is no other reasonable cause for the occurrence on 9–1–06 other than the first dose of Terazosin.

(Dkt. No. 68, Ex. 2, Kerlinsky Supp. Statement at 2–3.)

As Defendants correctly note, an expert opinion on medical causation must contain two elements—general causation, i.e., that the drug can cause the injury, and specific causation, i.e., that the drug did cause the injury in this case. See In re Neurontin Mktg., Sales Practices, and Prods. Liab. Lit., 612...