895 F.2d 46 (1st Cir. 1990), 89-1738, Garside v. Osco Drug, Inc.

Docket Nº:89-1738.
Citation:895 F.2d 46
Party Name:Milissa GARSIDE, et al., Plaintiffs, Appellants, v. OSCO DRUG, INC., et al., Defendants, Appellees.
Case Date:February 06, 1990
Court:United States Courts of Appeals, Court of Appeals for the First Circuit
 
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895 F.2d 46 (1st Cir. 1990)

Milissa GARSIDE, et al., Plaintiffs, Appellants,

v.

OSCO DRUG, INC., et al., Defendants, Appellees.

No. 89-1738.

United States Court of Appeals, First Circuit

February 6, 1990

Heard Jan. 12, 1990.

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Andrew C. Schultz, with whom Mary-Ellen Kennedy and Field & Schultz, Boston, Mass., were on brief, for plaintiffs, appellants.

David R. Geiger, with whom Michael B. Keating, David J. Burgess, and Foley, Hoag & Eliot, Boston, Mass., were on brief, for defendant, appellee, Hoffmann-LaRoche, Inc.

Karen M. Moran, with whom Peter C. Knight, David E. Maglio, and Morrison, Mahoney & Miller, Boston, Mass., were on brief, for defendant, appellee, Beecham, Inc.

Before SELYA, ALDRICH and CYR, Circuit Judges.

SELYA, Circuit Judge.

In this diversity case, appellants calumnize the district court for taking too grudging a view of alternative liability under Massachusetts tort law. But they are attempting to slide into home plate without ever having reached second base.

I

Appellants, plaintiffs below, are Milissa Garside, a minor, and her parents. In April 1982, a physician prescribed amoxicillin to treat Milissa's ear infection. She was simultaneously taking phenobarbital for seizures. On April 23, prescriptions for both drugs were filled at a nearby pharmacy. Milissa took the medication as prescribed. A week later, a rash began to develop. At her physician's direction, amoxicillin was discontinued and erythromycin substituted. Mrs. Garside discarded the amoxicillin vial and the unused pills.

Notwithstanding the changed regimen, the rash worsened. Shortly, Milissa was diagnosed as having contracted toxic epidermal necrolysis (T.E.N.). The consequences were fearsome; Milissa became blind, suffered a significant hearing loss, and is badly scarred.

Plaintiffs sued in state court alleging that the T.E.N. syndrome was caused by an adverse reaction to amoxicillin and/or phenobarbital. Eventually, the defense lineup included the pharmacy, Osco Drug; the alleged manufacturer of the phenobarbital, McKesson Corp.; and the present appellees, Hoffman-LaRoche, Inc. and Beecham, Inc. (who, plaintiffs alleged, manufactured

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amoxicillin and supplied it to Osco). McKesson, the last player in the game, removed the case to federal district court. See Garside v. Osco Drug, Inc., 702 F.Supp. 19 (D.Mass.1988) (procedural ruling denying motion to remand).

The third amended complaint contains sixteen counts, four aimed at each defendant. Without exception, the claims are premised on theories of negligence or breach of implied warranty. After considerable discovery, Hoffman and Beecham moved for summary judgment. In a thoughtful rescript, the district court noted that, viewing the record most hospitably to appellants, they could prove only that Hoffman and Beecham "are the two possible manufacturers of the amoxicillin that [Milissa] ingested;" 1 that appellants bore the burden of proving that a given defendant's acts or omissions caused the harm complained of; that, absent identification evidence, appellants could not satisfy this burden; and that Massachusetts would not, on the facts of this case, adopt some neoteric theory of alternative liability "to shift the burden of proving causation/identification from the plaintiff[s] to the two pharmaceutical companies." 2 Accordingly, the district court granted appellees' motions and ordered the entry of final judgment in their favor. See Fed.R.Civ.P. 54(b).

II

Summary judgment is appropriate when "there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). The movant must put the ball in play, averring "an absence of evidence to support the nonmoving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 2554, 91 L.Ed.2d 265 (1986). The burden then shifts to the nonmovant to establish the existence of at least one fact issue which is both "genuine" and "material." See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986); Brennan v. Hendrigan, 888 F.2d...

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