Alamo Rodriguez v. Pfizer Pharmaceuticals, Inc.

• Decision Date: 30 September 2003
• Docket Number: No. 02-1353 (DRD).,02-1353 (DRD).
• Citation: Alamo Rodriguez v. Pfizer Pharmaceuticals, Inc., 286 F.Supp.2d 144 (D. P.R. 2003)
• Parties: Juan ALAMO RODRIGUEZ, Plaintiff, v. PFIZER PHARMACEUTICALS, INC., Defendant.
• Court: U.S. District Court — District of Puerto Rico

286 F.Supp.2d 144

Juan ALAMO RODRIGUEZ, Plaintiff, v.PFIZER PHARMACEUTICALS, INC., Defendant.

No. 02-1353 (DRD).

United States District Court, D. Puerto Rico.

September 30, 2003.

Arturo Luciano-Delgado, San Juan, PR, for plaintiff.

Carl E. Schuster, Schuster, Usera & Aguilo, LLP, San Juan, PR, for defendant.

OPINION & ORDER

DOMINGUEZ, District Judge.

Pending before the Court is Defendant's, Pfizer Pharmaceuticals, Inc., (hereinafter referred to as "Pfizer" or "Defendant"), Motion for Summary Judgment(DocketNo. 27), which PlaintiffJuan Alamo Rodriguez(hereinafter referred to as "Plaintiff" or "Alamo") duly opposed (DocketNo. 35).Defendant replied through DocketNo. 43.On May 14, 2003, the Court referred the matter to Magistrate Judge Gustavo A. Gelpi for a report and recommendation, pursuant to 28 U.S.C. § 636(b)(1)(B);FED.R.CIV. P. 72(b); and Local Rule 503.(DocketNo. 39).The Magistrate filed a Report and Recommendation ("R & R") on June 27, 2003(DocketNo. 47).In the report, the Magistrate recommended that the Motion for Summary Judgment filed by Defendant be granted.¹Plaintiff filed objections thereto, on July 7, 2003.(DocketNo. 48).After considering Plaintiff's objections, and reviewing de novo the R & R, the Court determines that Pfizer's Motion for Summary Judgment should be GRANTED.

I.MAGISTRATE REPORT AND RECOMMENDATION

The District Court may refer dispositive motions to a United States Magistrate Judge for a Report and Recommendation.28 U.S.C. § 636(b)(1)(B)(1993);FED.R.CIV. P. 72(b);Rule 503, Local Rules, District of Puerto Rico.SeeMathews v. Weber,423 U.S. 261, 96 S.Ct. 549, 46 L.Ed.2d 483(1976).Of course, an adversely affected party may contest the Magistrate's report and recommendation by filing its objections within ten (10) days after being served a copy thereof.SeeLocalRule 510.2(A);FED.R.CIV. P. 72(b).Moreover, 28 U.S.C. § 636(b)(1), in pertinent part, provides that:

Within ten days of being served with a copy, any party may serve and file written objections to such proposed findings and recommendations as provided by rules of court.A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate.

See28 U.S.C. § 636(b)(1).

However, pursuant to FED.R.CIV. P. 72(b), "[a]bsent objection by the plaintiffs, the district court had a right to assume that plaintiffs agreed to the magistrate's recommendation."Templeman v. Chris Craft Corp.,770 F.2d 245, 247(1st Cir.1985), cert. denied,474 U.S. 1021, 106 S.Ct. 571, 88 L.Ed.2d 556(1985).Moreover, "[f]ailure to raise objections to the Report and Recommendation waives that party's right to review in the district court and those claims not preserved by such objection are precluded on appeal."Davet v. Maccarone,973 F.2d 22, 30-31(1st Cir.1992).See alsoHenley Drilling Co. v. McGee,36 F.3d 143, 150-151(1st Cir.1994)(holding that objections are required when challenging findings actually set out in magistrate's recommendation, as well as magistrate's failure to make additional findings);Lewry v. Town of Standish,984 F.2d 25, 27(1st Cir.1993)(stating that "[o]bjection to a magistrate's report preserves only those objections that are specified");Keating v. Secretary of H.H.S.,848 F.2d 271, 275(1st Cir.1988);Borden v. Secretary of H.H.S.,836 F.2d 4, 6(1st Cir.1987)(holding that appellant was entitled to a de novo review, "however he was not entitled to a de novo review of an argument never raised").See generallyUnited States v. Valencia-Copete,792 F.2d 4, 6(1st Cir.1986);Park Motor Mart, Inc. v. Ford Motor Co.,616 F.2d 603, 605(1st Cir.1980).

Provided Plaintiff has objected to all the determinations addressed by the Magistrate, the Court shall make a de novo determination and review of the arguments raised by both parties.

II.FACTUAL & PROCEDURAL BACKGROUND

The Court must analyze the factual scenario in this case construing the facts, the record, and all reasonable inferences in the light most favorable to the party opposing summary judgment.Reeves v. Sanderson Plumbing Products, Inc.,530 U.S. 133, 150, 120 S.Ct. 2097, 2110, 147 L.Ed.2d 105(2000)("... the Court must draw all reasonable inferences in favor of the nonmoving party ...");see also, Leahy v. Raytheon Company,315 F.3d 11, 17(2002)("... the court must take the record `in the light most hospitable to the party opposing summary judgment, indulging all reasonable inferences in that party's favor'.")(quotingGriggs-Ryan v. Smith,904 F.2d 112, 115(1st Cir.1990);see also, Plumley v. Southern Container Inc.,303 F.3d 364, 368-69(1st Cir.2002);Rosenberg v. City of Everett,328 F.3d 12, 17(1st Cir.2003)(the Court"presents [the facts] in the light most favorable to the plaintiff.")).

PlaintiffJuan Alamo Rodriguez, began working at DefendantPfizer Pharmaceuticals, Inc., at its Vega Baja Plant, on May 9, 1978.Plaintiff occupied various positions until he was appointed as a Mechanic Operator in the Packaging Rolaids-DS Department, on October 20, 1997.(DocketNo. 1, ¶ 3).Plaintiff's duties at the position of Mechanic Operator comprehended the following, to wit: operation of the roll wrapper and multipacker machine, including cleaning, inspecting the product, packaging, folding the displays in which the rolls that go into the multipacker machine are placed, and repairing the multi packer machine.Most of the time, Plaintiff's functions required him to be in a standing position.(DocketNo. 35, Ex. 6, pgs.29, 52-58;Ex. 29).

On September 13, 2000, Plaintiff visited Pfizer's physician, Dr. Roberto Lopez, and complained about having shoulder pain.Plaintiff stated that the pain was caused by the repetitive manual movements required to fold the displays in which the Rolaid rolls are placed for packing, in the multi packer machine he operated.Dr. Lopez referred Plaintiff to physiatrist treatment under the care of Dr. Angel Colon.Following various physical therapy sessions, Dr. Colon thereafter referred Plaintiff to Dr. Raul Rodriguez Santiago.On or about September 30, 2000, Dr. Rodriguez diagnosed Plaintiff with osteoarthritis² and prescribed Celebrex as treatment.(Docket No. 35, Ex. 1, p. 28).

Approximately fifteen days after the referral, Dr. Rodriguez issued a medical certificate regarding Plaintiff, which Alamo in turn addressed to Defendant Pfizer.(DocketNo. 35, Ex. 10).In his certificate, Dr. Rodriguez stated that the Plaintiff"should avoid stressful repetitive movements", particularly with the hands.(DocketNo. 35, Ex. 10).Dr. Rodriguez did not specify in the certificate, any particular restrictions as far as duration and quantity of work the Plaintiff was able to perform.³

Alamo returned to Pfizer on October 23, 2000, and visited the Defendant's physician, Dr. Lopez.Thereafter, Dr. Lopez requested Dr. Rodriguez to specify the restrictions recommended to Plaintiff, according to duration and quantity of work he was capable of performing.Through a letter dated October 30, 2000, Dr. Rodriguez stated that Alamo should "avoid repetitive hand squeeze, grasp, grip and pull more than 10 lbs. during the day."(DocketNo. 35, Exh. 12).However, Dr. Lopez determined that Dr. Rodriguez's recommended restrictions lacked the required information to determine changes in the Plaintiff's work duties, and how those changes, if any, were to be implemented by Pfizer.Dr. Lopez instead decided to perform a Functional Capacity Evaluation ("FCE") upon Plaintiff, and to wait for the "FCE" to be completed.(DocketNo. 29, Ex. 11).

The "FCE" was performed on November 3, 2000, by physical therapist Javier Espina.(DocketNo. 35, Ex. 9).The evaluation concluded that Alamo was able to "work at the LIGHT Physical Demand Level for an 8 hour day according to the Dictionary of Occupational Titles."Id.The report stated that Plaintiff had a specific leg capacity and torso lift capacity of 20 lbs., and without more, concluded that Plaintiff did not meet the physical requirements of the position of Mechanic Operator.(DocketNo. 35, Ex. 9;DocketNo. 29, Ex. 15).

On January 10, 2001, rheumatologist Dr. Carlos A. Pantojas, evaluated the Plaintiff.(DocketNo. 29, Exh. 15;Docket No. 35, Ex. 1, p. 83, lines 8-12).Pursuant to Dr. Pantojas' examination, Alamo exhibited "problems for sustained positions or repetitive movements", and that Alamo should avoid "lifting or carrying moderate or heavy objects or perform activities which require hyperextension of neck or lifting arms over shoulders ..."(Docket No. 29, Ex. 15, p. 3).On January 17, 2001, Alamo visited Pfizer to discuss the results of the "FCE" and his return to work.(DocketNo. 29, Ex. 17).At that point, the results of Dr. Pantojas' evaluation had not been received by Pfizer.⁴Defendant then referred Plaintiff for a second "FCE" to be performed by Dr. Rafael Sein, which Plaintiff underwent on March 5, 2001.(DocketNo. 29, Ex. 18).Dr. Sein's evaluation revealed a capacity to work as a Mechanic/Operator, but with specific restrictions.(DocketNo. 29, Ex. 18, ps. 1-4).

On March 23, 2003, the Modified Duty Committee at Pfizer evaluated Dr. Sein's examination record and agreed to implement the physical restrictions suggested by the doctor.Those restrictions included, i) no lifting of objects weighing more than 37 pounds; ii) avoid repetitive work using superior extremities, and, iii) avoid remaining in the standing position for more than four (4) hours, during an eight (8) hour work day.(DocketNo. 29, Ex. 19).On April 11, 2001, Alamo contacted Pfizer and, held a conversation with Dr. Lopez, as to the recommended restrictions.At that point, Alamo agreed to them and to return to work.(DocketNo. 29, Ex. 20).

Plaintiff returned to Pfizer...