Fontenot v. Upjohn Co., 85-4201

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Citation780 F.2d 1190
Docket NumberNo. 85-4201,85-4201
Parties, 3 Fed.R.Serv.3d 1126 Marian FONTENOT, etc., Plaintiff-Appellant, v. The UPJOHN COMPANY, Defendant-Appellee.
Decision Date17 January 1986

Duro J. Duplechin, Jr., New Orleans, La., for plaintiff-appellant.

Onebane, Donohoe, Bernard, Torian, Diaz, McNamara & Abell, Graham N. Smith, Timothy J. McNamara, Lafayette, La., for defendant-appellee.

Appeal from the United States District Court for the Western District of Louisiana.

Before RUBIN, RANDALL, and WILLIAMS, Circuit Judges.

Appeal from the United States District Court for the Western District of Louisiana.

ALVIN B. RUBIN, Circuit Judge:

The question presented is whether the district court may render summary judgment against a party who will bear the burden of proof of an essential element of its case at trial but is unable, in response to a motion for summary judgment, to produce any evidence, direct or circumstantial, on that issue; or to identify any witness who will testify in her favor on the issue; or to produce any evidence that might create an inference in her favor. We hold that, in the absence of even a scintilla of evidentiary material in her favor, such a party should not be entitled to put her opponent to trial on the merits by making the bare allegations of notice pleading. Therefore, in the absence of any evidence whatever, after seven months of time for discovery, that the plaintiff's treatment during two pregnancies with a drug perhaps manufactured by the defendant was capable of causing the complained-of heart defects in the plaintiff's two children, summary judgment in favor of the manufacturer is affirmed.

I.

Marian Fontenot, the mother of Melanie Ann Fontenot, then 15, and Brian Glenn Fontenot, then 13, sued the Upjohn Company on December 20, 1983. She alleged that her physician had treated her with progesterone before the birth of each child, that the progesterone he used was made by Upjohn, and that, as a result of her use of the drug, Melanie was born with a ventricle septal defect that required surgery when she was three months old and Brian was born with both a ventricle septal defect and heart valve problems that required three surgical interventions.

Although neither party offered any evidence concerning the nature of progesterone, we learn from a standard text and from the Physician's Desk Reference, that progesterone is a natural hormone whose function is to prepare the uterus for the reception and development of fertilized ovum. 1 Synthetic progestational agents, which are made by a number of pharmaceutical companies, have been used in an attempt to prevent habitual abortion or to treat threatened abortion. Because studies have suggested an association "between intrauterine exposure to female sex hormones and congenital anomalies," the use of progestational agents during the first four months of pregnancy is not recommended. 2 In July, 1984, Mrs. Fontenot dismissed her counsel and retained new counsel, who was enrolled on July 5. On July 31, Upjohn served interrogatories on Mrs. Fontenot's new counsel. After her answers were filed in October, 1984, Upjohn filed a motion for summary judgment contending (1) that it had not manufactured the products identified by Mrs. Fontenot in her interrogatories as the drug she had received, Progesterone 1 or Progest; and (2) that Mrs. Fontenot was unable to demonstrate in any way that the injuries allegedly suffered by her children were caused by a product made by Upjohn. In its memorandum in support of the motion, Upjohn pointed out that, in various interrogatories, Mrs. Fontenot had been asked:

To list every witness, other than experts, whom she might call to support any of the allegations of her complaint To name any witness who had indicated to her that any defects suffered by either Melanie Ann or Brian Glenn were in any way related to the use of the drug identified in her complaint;

To identify any expert witness who could testify that any ailments suffered by either Melanie Ann or Brian Glenn were related to the drug described in her complaint;

To list all experts whom she had consulted.

To all of these interrogatories except the last, Mrs. Fontenot had replied, "Unknown at the present time." In her answer to the last question, she added: "However, these experts will be developed by the plaintiffs prior to trial and information regarding these experts will be supplied to defendant as developed." At the time she filed her answers to these interrogatories, the suit had been pending for ten months.

In further support of its motion, Upjohn filed the affidavit of Reed Peterson, its vice-president for marketing, who attested that Upjohn had never manufactured a drug with the trade name of the drug that Mrs. Fontenot claimed that she had ingested. But Upjohn did not supply any affidavits or evidentiary material to negate the possibility that heart defects of the kind alleged might be caused by administration of progesterone to a mother during her pregnancy.

In her opposition to the motion, filed in February, 1985, Mrs. Fontenot attached the affidavit of her treating doctor who affirmed that the drug he had administered during her pregnancies was "probably made by Upjohn." But Mrs. Fontenot offered no evidentiary basis to support the claim that this drug had caused, or was even capable of causing, the birth defects in her two children, saying: "The question of causation, by its very nature, addresses itself to the merits of the case, and is not a proper reason for the granting of a motion for summary judgment." Mrs. Fontenot's counsel then sought more time for discovery, and filed two motions for a continuance: (1) a motion for a continuance of the April, 1985 trial date, in which defense counsel joined, and (2) a motion for a continuance of the hearing on the motion for summary judgment, which was opposed by counsel for Upjohn.

The district court granted the motion to continue the trial date, but denied the motion for a continuance of the hearing on the motion. On February 12, the court granted summary judgment without, however, giving any reasons for its action. Mrs. Fontenot asserts on appeal that her motion for a continuance should not have been denied and that the summary judgment should be reversed.

II.

A motion for a continuance is addressed to the discretion of the trial court 3 and its denial of such a motion will be reversed on appeal only when the action is, to use the conventional term, "an abuse of discretion." 4 As Judge Henry Friendly has pointed out, that verbal standard is used to describe a wide variety of different measures of latitude. 5 When the question for the trial court is a scheduling decision, such as whether a continuance should be granted, the judgment range is exceedingly wide, for, in handling its calendar and determining when matters should be considered, the district court must consider not only the facts of the particular case but also all of the demands on counsel's time and the court's.

In moving the court for a continuance, Ms. Fontenot's counsel did not indicate any specific discovery that he proposed to undertake. While he had propounded four interrogatories to Upjohn that had not been answered, all of these inquired into the sale of progesterone to pharmacies in Morgan City, Louisiana, and none was even remotely addressed to causation. Federal Rule of Civil Procedure 56(f) provides that a party who needs additional time to oppose a motion for summary judgment must file an affidavit "that he cannot for reasons stated present by affidavit facts essential to justify his opposition." While a party's failure to comply with Rule 56(f) procedure does not preclude consideration of the motion, 6 some equivalent statement, preferably in writing or at least at the hearing of the motion, is expected. Ms. Fontenot's counsel neither filed such an affidavit nor stated any facts that would have required a continuance. Instead he said only that (1) the plaintiff had not yet had sufficient time or resources to complete discovery, and (2) the facts creating genuine issues for trial are peculiarly within the knowledge of the defendant. Counsel has suggested no information concerning causation that he would like to obtain from Upjohn, and discovery from Upjohn is not a device by which he could learn of witnesses who might support his claim that progesterone was a possible, let alone likely, cause of the heart defects in the plaintiff's children.

Moreover, counsel has not suggested how he was prejudiced by the denial of a continuance. Federal Rule of Civil Procedure 61 forbids reversal absent prejudice to the "substantial rights" of a party.

We, therefore, refuse to substitute our judgment concerning the necessity of a continuance for that of the district court, both because the call was for the trial judge to make and because no resultant prejudice has been shown.

III.

The principal function of the motion for summary judgment is to show that, in the absence of factual disputes, one or more of the essential elements of a claim or defense before the court is not in doubt and that, as a result, judgment should be entered on the basis of purely legal considerations. Summary judgment must, therefore, be rendered when the material offered in support of and in opposition to the motion "show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." 7 Because subject matter jurisdiction in this case is founded on diversity, the case is, of course, controlled by Louisiana law. In products liability cases in Louisiana, the plaintiff bears the burden of proving a causal connection between use of the product and the injury for which she seeks redress. 8

In the usual case, the party who seeks a summary judgment must show by affidavit or other evidentiary materials that there is no genuine dispute as to any fact...

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    ...hearing. The granting or denial of a motion for continuance is within the trial court’s sound discretion. Fontenot v. Upjohn Co. , 780 F.2d 1190, 1193 (5th Cir. 1986); Villegas v. Carter , 711 S.W.2d 624, 626 (Tex. 1986). The federal rule allows for continuances to permit the non-movant to ......
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    ...hearing. The granting or denial of a motion for continuance is within the trial court’s sound discretion. Fontenot v. Upjohn Co. , 780 F.2d 1190, 1193 (5th Cir. 1986); Villegas v. Carter , 711 S.W.2d 624, 626 (Tex. 1986). The federal rule allows for continuances to permit the non-movant to ......
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    ...Fontenot v. Our Lady of Holy Cross Coll. , CIV.A. 11-1375, 2011 WL 4368836 (E.D. La. Sept. 19, 2011), §24:3.A.1 Fontenot v. Upjohn Co. , 780 F.2d 1190 (5th Cir. 1986), §41:3.D Foore v. Crumpton , 43 Fair Empl. Prac. Cas. 638 (D. Or. 1987), §40:10.C.4 Forbes Inc. v. Granada Biosciences, Inc ......
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