Galvin v. Eli Lilly and Co.

• Decision Date: 08 June 2007
• Docket Number: No. 05-7134.,05-7134.
• Citation: 488 F.3d 1026
• Parties: Paula J. GALVIN, Appellant v. ELI LILLY AND COMPANY, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

488 F.3d 1026

Paula J. GALVIN, Appellant v. ELI LILLY AND COMPANY, Appellee.

No. 05-7134.

United States Court of Appeals, District of Columbia Circuit.

Argued November 17, 2006.

Decided June 8, 2007.

Appeal from the United States District Court for the District of Columbia (No. 03cv01797).

Aaron M. Levine argued the cause for appellant. With him on the briefs was Brandon J. Levine.

James J. Dillon argued the cause and filed the brief for appellee.

Before: GINSBURG, Chief Judge, and RANDOLPH and ROGERS, Circuit Judges.

Opinion for the Court filed by Chief Judge GINSBURG.

Dissenting opinion filed by Circuit Judge ROGERS.

GINSBURG, Chief Judge.

Paula J. Galvin appeals the summary judgment entered by the district court in favor of defendant Eli Lilly and Company. Galvin claims she suffered injuries resulting from her exposure to Diethylstilbesterol (DES) manufactured by Lilly. The district court concluded Galvin failed to present sufficient evidence to demonstrate she was exposed to DES made by Lilly rather than by another company. We affirm the judgment.

I. Background

DES, also known as stilbesterol, is a synthetic estrogen that was prescribed in the middle third of the twentieth century to prevent miscarriage and premature birth. Gassmann v. Eli Lilly & Co., 407 F.Supp.2d 203, 205 (D.D.C.2005). Later research revealed that the children of women who took DES while pregnant are more likely to have certain health problems, including infertility. Id.

In 1964 and 1965 Elizabeth Keller, while pregnant with Galvin, was prescribed 25 mg DES pills, which she purchased from the Crowell Ash Drug Store in Pittsburg, Kansas. Some 40 years later, Galvin filed this suit against Lilly, claiming Keller had purchased DES manufactured by Lilly and she was infertile as a result of her exposure to the drug in utero.

After discovery Lilly moved for summary judgment, arguing that Galvin could not show the DES Keller had taken was more likely than not made by Lilly. The Company provided evidence from various directories of drug manufacturers (the 1964-65 Blue Book and the 1964 and 1965 editions of the Red Book, respectively) listing 32, 104, or 97 firms that manufactured DES in the relevant years. According to Lilly, Galvin had presented only two items of evidence relevant to product identification: Keller's description of the pill she took and a statement by Bill Waltrip, a pharmacist who had worked at the Crowell Ash Drug Store, discussing the store's stocking practices and suggesting the only DES it carried in the 1960s was made by Lilly. Keller had described the pill she took as a round "little white pill with a cross" and had answered "no" when asked whether she could remember (1) any other markings on the pill, (2) whether it had any coating, (3) what package the pill came in, or (4) anything about the label on the package. Lilly contended Keller's description of the pill was insufficiently specific; it identified not only Lilly's pill but also two other pills, one manufactured by Squibb (now Bristol-Myers Squibb) and one manufactured by Marsh Parker. As for the Waltrip statement, Lilly noted Waltrip did not start working for the Crowell Ash Drug Store until 1967 — two years after Keller had last purchased DES — and therefore lacked relevant personal knowledge.

In response Galvin sought to introduce supplemental affidavits by Keller and Waltrip. Keller's supplemental affidavit stated "[t]o the best of my recollection, the [DES] pills were small, round, white, and cross-scored without any writing on either side of the pill" and, referring to a photograph of a DES pill manufactured by Lilly, added "[a]s I stated in my deposition, the attached photograph shows the pills I ingested." Waltrip's supplemental affidavit stated that in 1967 he talked to other pharmacists at the drugstore and observed the practices and procedures of the store, from which it was apparent to him that the practices and procedures in 1967 did not differ from those followed in 1964-65. Galvin also noted she had presented expert testimony indicating no other DES pill matched Keller's description and evidence suggesting Lilly had the "lion's share" of the market. She also argued that her mother could not have purchased either the Squibb pill or the Marsh Parker pill because the Squibb pill had "Squibb" imprinted on the side and therefore did not match her description and the Marsh Parker pill was no longer sold in 1965.

The district court refused to consider Keller's supplemental affidavit because "it was not included in the discovery . . . . Plaintiff is not entitled to recharacterize and modify to her advantage statements made in the course of depositions after Defendant has relied on those depositions in drafting a dispositive motion." The court similarly refused to consider the Waltrip supplement, calling it an inappropriate "post hoc recalibration." The court then concluded Kansas law governed the claim, wherefore Galvin had to prove by a preponderance of the evidence that the Lilly product was the actual cause of her injury, and she had not done so. Although the Squibb pill could be eliminated as a possible culprit because it was for a different dosage, the Marsh Parker pill could not be discounted. Therefore, even if Keller's supplemental affidavit were considered, the court reasoned, there was no evidence suggesting the Marsh Parker pill differed in appearance from the Lilly pill, and Galvin's contention that Marsh Parker was not in the market at the time was refuted by its listing in the Red Book. Galvin had also submitted two documents indicating the market shares of various DES manufacturers during 1964 and 1965 that did not identify Marsh Parker as a producer, but the district court rejected them because it appeared they did not encompass the Kansas market. The court therefore concluded Galvin "cannot demonstrate that she was injured by Lilly DES rather than DES produced by a different company" and accordingly granted summary judgment in favor of the defendant.

Galvin filed a motion to amend the judgment, arguing in relevant part that the court had erred in refusing to consider the supplemental affidavits. The district court denied the motion, opining that Keller's supplemental affidavit "fundamentally change[d] the nature of [her] earlier deposition testimony" and that it was in any event irrelevant. As for Waltrip's supplemental affidavit, the court said, "Plaintiff cannot receive Defendant's motion for summary judgment and then go in search of new evidence with which to attack Defendant's arguments. This contradicts the very notion of a discovery process."

II. Analysis

On appeal, Galvin challenges the district court's refusal to consider the two supplemental affidavits and its grant of summary judgment for Lilly.

A. Admissibility of Supplemental Affidavits

A party opposing summary judgment may submit affidavits in support of its position provided such affidavits meet the requirements of Federal Rule of Civil Procedure 56(e). Virtually every circuit has adopted a form of the so-called "sham affidavit rule," which precludes a party from creating an issue of material fact by contradicting prior sworn testimony unless the "shifting party can offer persuasive reasons for believing the supposed correction" is more accurate than the prior testimony. Pyramid Sec. Ltd. v. IB Resolution, Inc., 924 F.2d 1114, 1123 (D.C.Cir. 1991); see Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795, 806-07, 119 S.Ct. 1597, 143 L.Ed.2d 966 (1999) (collecting cases). See generally 10A CHARLES ALAN WRIGHT, ARTHUR R. MILLER, & MARY KAY KANE, FEDERAL PRACTICE & PROCEDURE § 2726, at 448-52 (3d ed.1998).^* If the supplemental affidavit does not contradict but instead clarifies the prior sworn statement, then it is usually considered admissible. See, e.g., Selenke v. Med. Imaging of Colo., 248 F.3d 1249, 1258 (10th Cir.2001); Slowiak v. Land O'Lakes, Inc., 987 F.2d 1293, 1297 (7th Cir.1993); see also Aka v. Wash. Hosp. Ctr., 156 F.3d 1284, 1296 n. 14 (D.C.Cir.1998) (en banc); WRIGHT, MILLER, & KANE, supra.

The district court refused to consider the supplemental Keller and Waltrip affidavits on the ground it was improper for the affiants to "recharacterize" their prior testimony after the close of discovery. We agree that "parties' opportunism should not readily imperil summary judgment," Pyramid, 924 F.2d at 1124; see also Cowan v. Prudential Ins. Co. of Am., 141 F.3d 751, 756 (7th Cir.1998) ("[A] deposition is the time for the plaintiff to make a record capable of surviving summary judgment — not a later filed affidavit"), and also recognize that a district court has broad discretion with respect to discovery, see Hussain v. Nicholson, 435 F.3d 359, 363 (D.C.Cir.2006). A supplemental affidavit filed by an interested party should not be deemed inadmissible solely because it was filed in response to a motion for summary judgment, however; the important considerations are whether the affidavit contradicts a prior sworn statement without justification or the filing party breached its obligations in discovery. See FED. R. CIV. P. 37.

Galvin contends the supplemental affidavits do not contradict but merely clarify the affiants' prior statements. Because we conclude there would not be a genuine dispute over a material fact even if the supplemental affidavits were admitted, we find it unnecessary to rule upon their actual admissibility. Were it otherwise, we would have to determine whether these affidavits contradict or clarify prior statements and possibly also whether the sham affidavit rule should be applied to a non-party witness.

B. Summary Judgment

We review the district court's grant of summary judgment de novo. See Flynn v. R.C. Tile, 353 F.3d 953, 957 (D.C.Cir.2004). Summary judgment is appropriate only if "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)...