Bartlett v. Mut. Pharm. Co., Inc.

• Decision Date: 12 August 2010
• Docket Number: Civil No. 08-cv-00358-JL
• Citation: 731 F.Supp.2d 184,2010 DNH 148
• Parties: Karen L. BARTLETT v. MUTUAL PHARMACEUTICAL COMPANY, INC.
• Court: U.S. District Court — District of New Hampshire

731 F.Supp.2d 184

2010 DNH 148

Karen L. BARTLETT

v.MUTUAL PHARMACEUTICAL COMPANY, INC.

Civil No. 08-cv-00358-JL.

United States District Court, D. New Hampshire.

Aug. 12, 2010.

Bryan Ballew, Keith M. Jensen, Patrick J. O'Neal, Eric Roberson, Jensen Belew & Gonzalez PLLC, Fort Worth, TX, Christine M. Craig, Timothy P. Beaupre, Shaheen & Gordon, Dover, NH, for Karen L. Bartlett.

Jeffrey D. Geoppinger, Joseph P. Thomas, Linda E. Maichl, Paul J. Cosgrove, Ulmer & Berne LLP, Cincinnati, OH, Stephen J. Judge, Pierre A. Chabot, Wadleigh Starr & Peters PLLC, Manchester, NH, for Mutual Pharmaceutical Company, Inc.

MEMORANDUM ORDER

JOSEPH N. LAPLANTE, District Judge.

This products liability case, which arises from injuries allegedly caused by the prescription drug Sulindac, is scheduled to begin trial next week. In advance of trial, this court ordered the parties to brief whether the defendant Mutual Pharmaceutical Company has sufficient evidence to support its affirmative defenses based on (1) plaintiff Karen Bartlett's failure to stop taking the drug Sulindac and/or to seek medical care as soon as she began feeling sick; and (2) her doctor Tahsin Ergin's failure to read Sulindac's warning label and/or to warn Bartlett of the drug's safety risks. After reviewing the parties' submissions, this court concludes that Mutual (which has not designated an expert to explain how any of those failures caused or contributed to Bartlett's injuries) does not have sufficient evidence to support those defenses and accordingly strikes them from the case.¹

I. Applicable legal standard

"It is without question that district courts, in appropriate circumstances, are entitled to enter summary judgment sua sponte." P.R. Elec. Power Auth. v. Action Refund, 515 F.3d 57, 64 (1st Cir.2008). To guard against any unfairness to the parties, our court of appeals has "required two conditions prior to the district court's exercise of such a right:" (1) "the discovery process must be sufficiently advanced that the parties have enjoyed a reasonable opportunity to glean the material facts," and (2) "the district court must provide the targeted party appropriate notice and a chance to present its evidence on the essential elements of the claim or defense." Id. at 64-65. Both of those conditions have been met here: the discovery process is over, and this court gave Mutual notice and an opportunity to present evidence on its defenses.² This court will therefore evaluate those defenses as it would in the context of a summary judgment motion filed by Bartlett.³

Summary judgment is appropriate where "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 that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c)(2). An issue is "genuine" if it could reasonably be resolved in either party's favor at trial, and "material" if it could sway the outcome under applicable law. Mulvihill v. Top-Flite Golf Co., 335 F.3d 15, 19 (1st Cir.2003). In making that determination, the "court must scrutinize the record in the light most flattering to the party opposing the motion, indulging all reasonable inferences in that party's favor." Id. The following factual summary is consistent with that approach.

II. Background ⁴

In December 2004, Bartlett sought medical treatment for pain in her right shoulder.Her doctor, Tahsin Ergin, prescribed a non-steroidal anti-inflammatory drug ("NSAID") called Clinoril. Dr. Ergin did not read the drug's label before prescribing it. Even without reading the label, Dr. Ergin knew from his medical background that the drug could cause a serious and potentially fatal skin disease known as Stevens-Johnson syndrome ("SJS") or toxic epidermal necrolysis ("TEN"). But it was not his usual practice to discuss that risk with patients, and he did not do so with Bartlett. Instead, Dr. Ergin told Bartlett that if she developed any adverse symptoms or abnormal reactions, she should stop taking the drug and contact his office.

Bartlett took the prescription to a nearby pharmacy, which filled it with Sulindac, a generic version of the drug, manufactured by Mutual. The pharmacy gave Bartlett a "prescription advisor," which she read, that advised her to "check with your doctor" if certain possible side effects, including diarrhea, "continue or are bothersome," to "check with your doctor as soon as possible if you experience rash or other skin conditions," and to "contact your doctor immediately if you experience swelling of hands, face, lips, eyes, throat, or tongue" or certain other symptoms.

Within weeks of the prescription, Bartlett began to feel sick. Her symptoms started on a Saturday as a bout with diarrhea, which continued into Sunday. She then went to work on Monday, but did not feel well enough to work a full day. That was the first day she contacted Dr. Ergin or her primary care physician. She went to an emergency room the following day (Tuesday), at which point she was complaining of a skin rash, fever, and eye irritation. She continued taking Sulindac until that point (and possibly a little longer, since there is a discrepancy between the number of pills she recalls taking and the number of pills left, see Bartlett, 2010 DNH 112, at 37-38, 731 F.Supp.2d at 156). Soon thereafter, she was diagnosed with SJS/TEN. She spent about three months in the hospital recovering, two of them in a medically induced coma, and emerged with permanent injuries.

III. Analysis

A. Defenses based on Bartlett's conduct

Mutual has asserted four affirmative defenses based on Bartlett's failure to stop taking the drug Sulindac and/or to seek medical care as soon as she began feeling sick. The first defense is comparative negligence. See N.H. Rev. Stat. § 507:7-d. The second is plaintiff's misconduct, which is the strict liability equivalent of comparative negligence.⁵ See Thibault v. Sears, Roebuck & Co., 118 N.H. 802, 813, 395 A.2d 843 (1978). The third is apportionment of liability. See N.H. Rev. Stat. § 507:7-e; DeBenedetto v. CLD Consulting Eng'rs, Inc., 153 N.H. 793, 804, 903 A.2d 969 (2006). The fourth is superseding or intervening cause. See Marcotte v. Timberlane/Hampstead Sch. Dist., 143 N.H. 331, 347-48, 733 A.2d 394 (1999).

All of those defenses have at least one element in common: causation. Mutual must prove by a preponderance of the evidence that Bartlett's conduct caused or contributed to her injuries. See N.H. Rev. Stat. § 507:7-d (comparative negligence-defendant has "burden of proof as to the existence or amount of fault attributable" to the plaintiff); Thibault, 118 N.H. at 813, 395 A.2d 843 (plaintiff's misconduct-defensenot available "if plaintiff's misconduct did not cause the loss or injury"); Tiberghein v. B.R. Jones Roofing, Co., 156 N.H. 110, 115, 931 A.2d 1223 (2007) (apportionment-defense involves "fault allocation ... between parties who have causally contributed to an accident"); Bruzga v. PMR Architects, P.C., 141 N.H. 756, 757-58, 693 A.2d 401 (1997) (superseding cause-defendant must show that superseding event "breaks the causal connection" between its conduct and plaintiff's injuries).

Although Mutual has not conceded the underlying premise that Sulindac caused Bartlett's SJS/TEN, see document no. 320, at 3 (noting that Mutual has no intent to challenge that point but will require Bartlett to prove it), its causation theory for these defenses seems to be that Bartlett's injuries would have been less severe if she had stopped taking Sulindac and gone to the emergency room immediately after she started to feel sick with diarrhea, rather than waiting a few days until she had developed more serious symptoms. Mutual has not, however, designated any experts to testify in support of that theory. Instead, Mutual relies on the deposition testimony of various treating physicians (as well as one of Bartlett's experts), all of whom testified that immediate cessation of the offending drug is the first and most important aspect of treating a drug reaction.

None of those witnesses, however, explained how or to what extent (if any) Bartlett's conduct affected her actual injuries. To the contrary, some of the treating physicians suggested that medical knowledge of SJS/TEN has not advanced to the point where that question can be reliably answered. Dr. John Schulz, for example, testified that "the horse is out of the barn" after the initial "medication exposure" and that "once the syndrome is initiated, God knows where it will plateau." Similarly, Dr. Colleen Ryan acknowledged that while it "makes sense" to stop taking the drug immediately, "it's unclear the relationship of dose to the process." Mutual's counsel echoed those sentiments during oral argument on the summary judgment motions, representing to the court that a person could take only one Sulindac pill and "be struck to the same degree as Ms. Bartlett was in this case." Document no. 220, at 53.

The only witness who ventured an opinion on this causation theory is Mutual's expert Dr. Robert Stern, who testified at his deposition that "there is a possibility that since Sulindac may have been the cause of [Bartlett's] reaction, ... she may have had a somewhat less severe outcome" if she had stopped taking the drug earlier. He then repeated: "That's a possibility." But Mutual needs to prove more than a mere possibility; it needs to prove a probability. Thus, Dr. Stern's conclusory opinion is not enough to sustain Mutual's defenses. The court also notes that Dr. Stern's opinion was expressed for the first time at his deposition, not in his expert report, and thus was not properly disclosed under Fed. R. Civ. P. 26(a)(2)(B)(i).

Without expert testimony, the jury has no reliable way of determining whether, or to what extent, Bartlett's conduct caused or contributed to her injuries, which were far beyond the experience of average jurors. See Lemay v. Burnett, 139 N.H. 633, 635, 660 A.2d 1116 (1995) (...