Fontenot v. Upjohn Co., No. 85-4201

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

Page 1190

780 F.2d 1190
54 USLW 2383, 3 Fed.R.Serv.3d 1126
Marian FONTENOT, etc., Plaintiff-Appellant,
v.
The UPJOHN COMPANY, Defendant-Appellee.
No. 85-4201.
United States Court of Appeals,
Fifth Circuit.
Jan. 17, 1986.

Page 1192

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;

Page 1193

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

Page 1194

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...

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2011 practice notes
  • City of San Jose v. Trump, No. 20-CV-05167-RRC-LHK-EMC
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
    • October 22, 2020
    ...the claims ... by undisputed facts." Cabo Distrib. Co. v. Brady , 821 F. Supp. 601, 607 (N.D. Cal. 1992) ; cf. Fontenot v. Upjohn Co. , 780 F.2d 1190, 1194 (5th Cir. 1986) (stating that, "if the movant bears the burden of proof on an issue, either because he is the plaintiff or as a defenda......
  • Pacheco v. St. Mary's Univ., Civil Case No. 15-cv-1131 (RCL)
    • United States
    • United States District Courts. 5th Circuit. Western District of Texas
    • June 20, 2017
    ...Page 12peradventure all of the essential elements of the claim or defense to warrant judgment in his favor." Fontenot v. Upjohn Co., 780 F.2d 1190, 1194 (5th Cir. 1986). If the movant does not bear the burden of proof at trial, he is entitled to summary judgment if he can point to an absenc......
  • Williams v. Calderon, No. CV 89-0327 SVW.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Central District of California
    • March 25, 1998
    ...defenses and that it is therefore entitled to judgment as a matter of law. See Fed.R.Civ.Pro. 56(c). See also Fontenot v. Upjohn Co., 780 F.2d 1190, 1194 (5th Cir.1986). A motion for summary judgment is properly brought in habeas corpus proceedings. Blackledge v. Allison, 431 U.S. 63, 80, 9......
  • AT & T Management Pension Plan v. Tucker, No. CV 95-2263 ABC.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Central District of California
    • August 14, 1995
    ...peradventure all of the essential elements of the claim or defense to warrant judgment in that party's favor. Fontenot v. Upjohn Co., 780 F.2d 1190, 1194 (5th Cir.1986). Furthermore, the court must view the evidence presented to establish these elements "through the prism of the substantive......
  • Request a trial to view additional results
2001 cases
  • City of San Jose v. Trump, No. 20-CV-05167-RRC-LHK-EMC
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
    • October 22, 2020
    ...the claims ... by undisputed facts." Cabo Distrib. Co. v. Brady , 821 F. Supp. 601, 607 (N.D. Cal. 1992) ; cf. Fontenot v. Upjohn Co. , 780 F.2d 1190, 1194 (5th Cir. 1986) (stating that, "if the movant bears the burden of proof on an issue, either because he is the plaintiff or as a defenda......
  • Supreme Home Health Servs., Inc. v. Azar, CIVIL ACTION NO. 18-1370
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Western District of Louisiana
    • April 8, 2019
    ..."beyond [doubt]Page 20 all of the essential elements of the claim . . . to warrant judgment in [its] favor." Fontenot v. Upjohn Co., 780 F.2d 1190, 1194 (5th Cir. 1986). In other words, the movant must affirmatively establish its right to prevail as a matter of law. Universal Sav. Ass'n v. ......
  • Lottinger v. Shell Oil Co., No. CIV. A. H-99-2103.
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Southern District of Texas
    • May 16, 2001
    ...Inc., 109 F.3d 1070, 1074 (5th Cir.), cert. denied, 522 U.S. 915, 118 S.Ct. 299, 139 L.Ed.2d 231 (1997)); see Fontenot v. Upjohn Co., 780 F.2d 1190, 1194 (5th Cir.1986). A genuine issue of material fact exists "if the evidence is such that a reasonable jury could return a verdict for the no......
  • Carmack v. Park Cities Healthcare, LLC, Civil Action No. 3:16-CV-3500-D
    • United States
    • U.S. District Court — Northern District of Texas
    • July 25, 2018
    ...One, Tex., N.A. v. Prudential Ins. Co. of Am. , 878 F.Supp. 943, 962 (N.D. Tex. 1995) (Fitzwater, J.) (quoting Fontenot v. Upjohn Co. , 780 F.2d 1190, 1194 (5th Cir. 1986) ). This means that plaintiffs must demonstrate that there are no genuine and material fact disputes and that they are e......
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