Miskin v. Baxter Healthcare Corp.

• Decision Date: 16 September 1999
• Docket Number: No. CIV. A. WMN-92-2975.,CIV. A. WMN-92-2975.
• Citation: 107 F.Supp.2d 669
• Parties: Kelly R. MISKIN, Plaintiff v. BAXTER HEALTHCARE CORP. et al. Defendant
• Court: U.S. District Court — District of Maryland

107 F.Supp.2d 669

Kelly R. MISKIN, Plaintiff v. BAXTER HEALTHCARE CORP. et al. Defendant

No. CIV. A. WMN-92-2975.

United States District Court, D. Maryland.

September 16, 1999.

Thomas A. Gentile, Harry W. Goldberg, Chevy Chase, MD, for Plaintiff.

Carol L. Nicolette, Goodell, DeVries, Leech & Gray, Baltimore, MD, for Defendant.

MEMORANDUM

GRIMM, United States Magistrate Judge.

This case has been assigned to me for final disposition, with the consent of the parties.¹ Local Rule 301.4; 28 U.S.C. § 636(c). Currently ripe for resolution is the motion for summary judgment filed by defendant Baxter Healthcare Corporation ("Baxter"), which has been fully, indeed too-fully, briefed.² (Papers No. 22, 23, 26, 28, 33, 36, and 37.) No hearing is necessary. Local Rule 105.6; Sakaria v. TWA, 8 F.3d 164, 169 (4th Cir.1993). For the reasons explained below, Baxter's motion is granted.

BACKGROUND

This lawsuit stems from surgery the plaintiff, Ms. Kelly Miskin ("Miskin"), underwent in April 1983, during which silicone filled implants were inserted into her breasts. She originally filed suit in this court in October 1992, but in March 1993, the case was transferred to the Northern District of Alabama as part of multidistrict litigation proceedings. By order dated March 2, 1998, the case was remanded to this court for all further proceedings. (Paper No. 8.) Plaintiff's second amended complaint, (Paper No. 3), asserts the following causes of action against Baxter, and Mentor Corporation, its co-defendant³: negligence, strict liability, fraud, failure to warn, intentional infliction of emotional distress, negligent infliction of emotional damages, and breach of implied warranty. (Second Am. Compl., Paper No. 3.) All of these causes of action turn on the plaintiff's claim that her implants were defective and caused her to develop Crohn's syndrome, and suffer other physical and emotional injuries. Because the surgery during which the breast inserts were installed took place in Maryland, the parties agree that Maryland law controls the substantive issues in this case. (Paper No. 42) (order directing counsel to inform the court if they contend that law other than Maryland law controls substantive issues).

The essence of Baxter's motion is that plaintiff has failed to meet her burden during summary judgment practice to identify evidentiary facts sufficient to create a genuine issue of material fact with respect to product defect, and causation. According to Baxter, the plaintiff has failed to identify admissible evidence which will be provided by any expert to establish that the implants in question were defective, or that they caused the injuries plaintiff claims. Because I agree, I will enter summary judgment in behalf of Baxter.

LEGAL ANALYSIS

The law is well settled that summary judgment is mandated if the non-moving party fails to make a showing sufficient to establish the existence of an element essential to that party's case, on which he or she bears the burden of proof. Fed. R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Runnebaum v. NationsBank, 123 F.3d 156, 163 (4th Cir.1997); Sylvia Dev. Corp. v. Calvert County, 48 F.3d 810, 817-18 (4th Cir.1995) (holding that once a defendant makes a properly supported motion for summary judgment the burden shifts to the non-moving party to set forth specific facts showing the existence of a genuine issue of fact for trial). To meet this burden, the non-moving party must produce competent evidence on each element of his or her claim. See Celotex, 477 U.S. at 324, 106 S.Ct. 2548; Runnebaum, 123 F.3d at 163. While a court must draw all reasonable inferences in favor of the non-moving party when ruling on a summary judgment motion, that party may not create a genuine issue of material fact through mere speculation, or building one inference upon another. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); see also Runnebaum, 123 F.3d at 164 (noting that unsupported speculation is not enough to defeat a motion for summary judgment); Sylvia Dev. Corp., 48 F.3d at 817-18 (holding that only reasonable inferences from the evidence need be considered by the court, and that it is the duty of the court to withdraw from the jury a case if a necessary inference is so tenuous that it rests on speculation or conjecture). To be entitled to consideration on summary judgment, the facts set forth by the parties in affidavits or otherwise must be such as would be admissible in evidence. See Fed.R.Civ.P. 56(c).; see also Sakaria, 8 F.3d at 171 (finding that the district court properly did not consider inadmissible hearsay in an affidavit during summary judgment practice); Mitchell v. Data General Corp., 12 F.3d 1310, 1315-16 (4th Cir.1993) ("The summary judgment inquiry thus scrutinizes the plaintiff's case to determine whether the plaintiff has proffered sufficient proof, in the form of admissible evidence, that could carry the burden of proof in his claim at trial."), Greensboro Prof'l Fire Fighters Assoc. Local 3157 v. City of Greensboro, 64 F.3d 962, 967 (4th Cir.1995) (concluding that inadmissible hearsay could not support an opposition to summary judgment). Similarly, unsworn, unauthenticated documents cannot be considered on a motion for summary judgment. To be admissible at the summary judgment stage, documents must be authenticated by and attached to an affidavit that meets the requirements of Rule 56(e)—that the documents be admissible in evidence. See Orsi v. Kirkwood, 999 F.2d 86, 92 (4th Cir.1993).

Moreover, a mere scintilla of supporting evidence is not enough to defeat a summary judgment motion. The non-moving party must identify sufficient evidence that reasonable jurors could find by a preponderance of the evidence. See Anderson, 477 U.S. at 252, 106 S.Ct. 2505; Sylvia Dev. Corp., 48 F.3d at 818. Finally, to support causation in the face of a summary judgment challenge, evidence which amounts to a probability, not just a possibility, must be identified by the non-moving party, to guard against "raw speculation" by the fact finder. Sakaria, 8 F.3d at 172-73 ("In a long line of decisions in this circuit we have emphasized that proof of causation must be such as to suggest `probability' rather than mere `possibility'; where resolution of a causation issue depends on expert opinion, it must meet the standard of probability."); see also Davidson v. Miller, 276 Md. 54, 61-62, 344 A.2d 422 (1975) (quoting Ager v. Baltimore Transit Co., 213 Md. 414, 421, 132 A.2d 469 (1957)) ("Maryland cases ... have stated ... that the test to be applied, whether the question involved is the existence of an injury or its cause, is reasonable probability or reasonable certainty.").

With respect to the substantive law which controls the outcome of the pending motion, it is clear that Maryland law requires the plaintiff to produce evidence that the implants were defective, and that this was the proximate cause of the injuries she claims. Lee v. Baxter Healthcare Corp., 721 F.Supp. 89, 95 (D.Md.1989), (citing Phipps v. General Motors, 278 Md. 337, 363 A.2d 955 (1976)); see also Owens-Illinois, Inc. v. Armstrong, 326 Md. 107, 117, 604 A.2d 47 (1992) (citing Phipps v. General Motors, 278 Md. 337, 344, 363 A.2d 955 (1976)) ("Causation is a necessary element of any strict liability action."); Jensen v. Am. Motors Corp., 50 Md.App. 226, 230, 437 A.2d 242 (1981) (requiring plaintiff, in a product liability case alleging negligence, breach of warranty and strict liability, to present evidence of a defect and that such defect was the proximate cause of the injury). Additionally, as this court noted in an earlier breast implant case, expert testimony is usually necessary since the evidence relating to causation involves technical medical questions beyond the common knowledge of laypersons, Lee, 721 F.Supp. at 96, and the interaction of a breast prosthesis with the human body raises technical questions requiring expert testimony. Id.; see also Virgil v. "Kash N' Karry" Serv. Corp., 61 Md.App. 23, 31, 484 A.2d 652 (1984) (noting that "[t]he general rule is well established that expert testimony is only required when the subject of the inference is so particularly related to some science or profession that it is beyond the ken of the average layman"); Hartford Accident & Indem. Co. v Scarlett Harbor Assoc. Ltd. Partnership, 109 Md.App. 217, 257, 674 A.2d 106 (1996) (holding that expert testimony is required for matters which jurors would not be aware of through common knowledge). Thus, if the plaintiff has failed to identify admissible evidence with respect to establishing that the implants were defective, and that such defect caused her injuries, then Baxter is entitled to summary judgment, because each of the tort claims asserted against Baxter depends upon plaintiff proving both defect, and causation. Similarly, her warranty claim requires her to show that the implants were not fit for their intended purpose, MD. CODE ANN., COM. LAW § 2-315(1) (1998) ("Where the seller ... has reason to know any particular purpose for which the goods are required and that the buyer is relying on the seller's skill or judgment ... there is ... an implied warranty that the goods shall be fit for such a purpose."), and that she suffered damages as a consequence. See Mattos, Inc. v. Hash, 279 Md. 371, 379, 368 A.2d 993 (1977) (noting that in an action for breach of warranty it is necessary to show that a warranty was breached and that this breach was the proximate cause of the injury). Therefore, proof of defect and causation is also required to support her warranty claim. As will next be seen, the plaintiff has failed to meet her burden in this regard.

DISCUSSION

In response to Baxter's challenge, plaintiff has identified the following sources of evidence to support her defect and causation claims: (1) Irving Brick, MD, a treating physici...