Latimer v. Smithkline & French Laboratories, a Div. of Smithkline Beckman Corp.

Decision Date14 December 1990
Docket NumberNo. 90-1118,90-1118
Citation919 F.2d 301
PartiesProd.Liab.Rep.(CCH)P 12,749 Thomas LATIMER, et ux, Carol Latimer, Plaintiffs-Appellants, v. SMITHKLINE & FRENCH LABORATORIES, A DIVISION OF SMITHKLINE BECKMAN CORP., et al., Defendants-Appellees.
CourtU.S. Court of Appeals — Fifth Circuit

Timothy M. Fults, Dallas, Tex., for plaintiffs-appellants.

James K. Peden, III, Sheree L. McCall, Strausburger & Price, Dallas, Tex., for SmithKline.

Steven R. McCown, Jennifer A. Youpa, Jenkens & Gilchrist, Dallas, Tex., for Chevron Chemical Co. and Ciba-Geigy Corp.

Appeal From the United States District Court for the Northern District of Texas.

Before GOLDBERG, KING and HIGGINBOTHAM, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

Thomas Latimer appeals a summary judgment in favor of defendants SmithKline & French Laboratories and Ortho Consumer Products. 1 Latimer alleges that a combination of his exposure to a pesticide manufactured by Ortho and his ingestion of a prescription drug made by SmithKline caused him to sustain damages. Finding that the facts in the record do not support Latimer's causal theory, the district court granted the defendants' motion for summary judgment. We agree that no genuine factual issue concerning causation is presented, and we therefore affirm.

I.

While working in his yard on July 20, 1985, Thomas Latimer developed a severe headache and began suffering from nausea and fatigue. Over the next several months, he continued to experience frequent headaches as well as slurred speech, unstable vision, and the inability to concentrate. After the symptoms began, Latimer was examined by Dr. Thomas Kurt, who offered an initial diagnosis based on the following erroneous assumption: that in late July, a couple of days before Latimer's symptoms appeared, a commercial lawn service had treated Latimer's lawn extensively with Diazinon, a pesticide manufactured by Ortho Consumer Products. Operating under this assumption, Dr. Kurt initially diagnosed Latimer's condition as "an acute and delayed neuropathy of a central nature related to [Latimer's] Diazanon [sic] exposure. He was probably made more susceptible to this by taking Cimetidine."

Cimetidine is the generic name for the prescription drug Tagamet, manufactured by SmithKline & French Laboratories. Latimer had been taking Tagamet since February of 1983. According to Dr. Kurt's original theory, the "acute and delayed neuropathy," also characterized as organophosphate poisoning, resulted from the combination of Latimer's limited exposure to Diazinon and his regular ingestion of Tagamet. Because organophosphate poisoning typically occurs in persons, such as professional lawn workers, who receive frequent and significant exposure to the chemical, Dr. Kurt sought to isolate other possible causal factors. He testified that Tagamet inhibits certain types of drugs (specifically, organophosphates, such as Diazinon, as well as carbamates) from passing through the liver, causing them to remain in the body longer than normal and thereby creating an artificially high exposure level.

Dr. Kurt later found out that Latimer's lawn had not received a commercial application of Diazinon since the fall of 1984 and that the most recent application of Diazinon to Latimer's lawn, which Latimer had done himself, occurred in June rather than in July of 1985. According to the testimony of an employee of the lawn service used regularly by Latimer, although the service had treated Latimer's lawn with some chemicals on July 22, 1985, those chemicals did not include Diazinon. Taking this new information into account, Dr. Kurt then revised his diagnosis to say that Latimer suffered from either organophosphate or carbamate poisoning, but Dr. Kurt refused to speculate as to which.

Latimer brought this action against SmithKline and against Ortho, alleging that he suffered neurological damage as a result of exposure to Tagamet and Diazinon. He asserts two claims against all defendants: negligence for failure to warn and violation of the Texas Deceptive Trade Practices and Consumer Protection Act, Tex.Bus. & Com.Code Ann. Sec. 17.41, et seq. He alleges an additional claim against SmithKline: breach of express and implied warranties. Defendants moved for summary judgment urging a lack of causation.

II.

Under Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." The party seeking summary judgment has the initial responsibility of informing the court of the basis for its motion and identifying those parts of the record that it believes demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). The moving party need not produce evidence negating the existence of a material fact, but need only point out the absence of evidence supporting the nonmoving party's case. Id. 106 S.Ct. at 2554; Fontenot v. Upjohn Co., 780 F.2d 1190, 1195 (5th Cir.1986). If the moving party carries his initial burden, the burden then falls upon the nonmoving party to demonstrate the existence of genuine issue of material fact. This showing requires more than "some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 106...

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