Nelson v. American Home Products Corp., 98-0909-CV-W-01.

• Decision Date: 24 March 2000
• Docket Number: No. 98-0909-CV-W-01.,98-0909-CV-W-01.
• Citation: 92 F.Supp.2d 954
• Parties: Roger G. NELSON, and Lou Nelson Plaintiffs, v. AMERICAN HOME PRODUCTS CORPORATION, and Wyeth-Ayerst Laboratories Company, Defendants.
• Court: U.S. District Court — Western District of Missouri

92 F.Supp.2d 954

Roger G. NELSON, and Lou Nelson Plaintiffs, v. AMERICAN HOME PRODUCTS CORPORATION, and Wyeth-Ayerst Laboratories Company, Defendants.

No. 98-0909-CV-W-01.

United States District Court, W.D. Missouri, Western Division.

March 24, 2000.

Grant L. Davis, Thomas C. Jones, Scott S. Bethune, and Timothy L. Brake, Law Offices of Lantz Welch, P.C., Kansas City, MO, for plaintiffs.

Harvey L. Kaplan, Mark C. Hegarty, Steven M. Thomas, Shook, Hardy & Bacon L.L.P., Kansas City, MO, for defendants.

ORDER

WHIPPLE, District Judge.

Rodger Nelson ("Nelson") lost his eyesight while he was taking Cordarone, a prescription heart medication manufactured and sold by American Home Products Corporation and Wyeth-Ayerst Laboratories Company (collectively referred to as "Defendants"). This products liability lawsuit followed.

To recover damages from Defendants, Plaintiffs Rodger and Lou Nelson ("the Nelsons") must prove, among other things, that Defendants' drug caused Nelson's lost eyesight. Defendants have moved for summary judgment on grounds that the Nelsons have failed to generate any issues of material fact that would permit a reasonable inference in their favor on the issue of causation. Specifically, Defendants argue that the Nelsons have failed to produce any admissible evidence that would entitle a reasonable trier of fact to infer that Defendants' drug caused Nelson's lost eyesight. Based on the Court's review of the extensive record submitted by counsel for both parties, and for the reasons set forth below, the Court GRANTS Defendants' motion for summary judgment.

I. SUMMARY JUDGMENT STANDARD

Federal Rule of Civil Procedure 56(c) provides that a district court shall grant summary judgment if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is (1) no genuine issue as to any material fact and that (2) the moving party is entitled to judgment as a matter of law." Fed. R. Civ. Proc. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 327, 106 S.Ct. 2548, 2554-55, 91 L.Ed.2d 265 (1986). The facts and inferences from those facts are viewed in the light most favorable to the nonmoving party. Fed.R.Civ.P. 56(c); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S 574, 586-90, 106 S.Ct. 1348, 1355-58, 89 L.Ed.2d 538 (1986). The moving party must carry the burden of establishing both the absence of a genuine issue of material fact and that such party is entitled to judgment as a matter of law. Id. The applicable substantive law identifies which facts are material. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). An issue is genuine when the evidence is such that a reasonable jury could return a verdict for the nonmovant. Id. at 249-50, 106 S.Ct. at 2510-11.

When the nonmovant has the burden of proof at trial, the movant may carry its burden at summary judgment by demonstrating the absence of an essential element of the nonmovant's claim. Celotex Corp. v. Catrett, 477 U.S. at 325, 106 S.Ct. at 2554. The moving party is not required to produce evidence showing the absence of a material fact on such issues, nor must the moving party support its motion with evidence negating the non-moving party's claim. Id.; Lujan v. National Wildlife Federation, 497 U.S. 871, 885, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990). If the moving party shows an absence of evidence to support the non-moving party's case, the burden then shifts to the opposing party to produce "specific facts showing that there is a genuine issue for trial." Fed. R. Civ. Proc. 56(e); Lower Brule Sioux Tribe v. State of S.D., 104 F.3d 1017, 1021 (8th Cir.1997). "[A] complete failure of proof concerning an essential element of the non-moving party's case necessarily renders all other facts immaterial." Celotex, 477 U.S. at 323 106 S.Ct. at 2552. Thus, summary judgment is appropriate in cases where the party bearing the burden of proof at trial has not presented any admissible evidence on an essential element of his or her claim. See e.g. Sorensen v. Shaklee Corp., 31 F.3d 638, 650-51 (8th Cir.1994) (affirming summary judgment where plaintiff's only causation evidence was held inadmissible under Rule 702).

II. FACTUAL BACKGROUND

After Nelson suffered a cardiac arrest on March 10, 1996, his cardiologist, Dr. Demosthenis Klonis, D.O., prescribed Cordarone, which is also known by its generic name, Amiodarone. Pursuant to Dr. Klonis's direction, Nelson ingested 400 mg of Amiodarone per day for the treatment of his ventricular arrhythmia. Nelson had been taking Amiodarone for nearly four months when he began to lose his eyesight.

On July 9, 1996, Nelson visited Dr. Kelly Grosdidier, M.D., an optometrist, complaining of vision problems in his right eye. Dr. Grosdidier's examinations showed diffuse visual field loss for the right eye and a normal left eye visual field. Examination also revealed a right afferent pupillary defect. Nelson's right optic nerve was slightly swollen and elevated with flame shaped hemorrhaging superior to the disc. Dr. Grosdidier reported that Nelson's left eye looked normal. Three days later, Nelson visited Dr. Lawrence Hamtil, M.D., an ophthalmologist, with increased problems in both eyes. Nelson reported that he could not see anything at all with the right eye. Dr. Hamtil's funduscopic examination revealed an elevated right optic disc with splinter hemorrhages, scattered background diabetic retinopathy, and macular edema. He also noted the unchanged amblyopia in Nelson's left eye. Dr. Hamtil diagnosed Nelson's problem in the right eye as anterior ischemic optic neuropathy ("AION") associated with diabetes mellitus. By the end of July 1996, Nelson could only see light out of the corner of his right eye. The sight from his left eye, having always been poor due to amblyopia, had worsened: he could only see some color and movement with his left eye. Dr. Hamtil continued to monitor the status of Nelson's ocular problems. He noted no improvement in Nelson's eyesight and continued blood clots in both eyes. Nelson mentioned to Dr. Hamtil that his grandfather had been blind. Dr. Hamtil persisted in his diagnosis of AION as late as June 1997.

Nelson continued taking Amiodarone for treatment of his ventricular arrhythmia until April 1997. In March 1997, Defendants changed the warnings on Cordarone's package insert to indicate that some instances of "optic neuropathy and/or optic neuritis, usually resulting in visual impairment, have been reported in patients treated with Amiodarone." In April, Defendants sent a form letter to hundreds of thousands of health care professionals explaining that "[t]here have been published reports of optic neuritis and optic neuropathy coincident with Amiodarone therapy ... [and] we have received spontaneous reports of optic neuritis or optic neuropathy coincident with Cordarone therapy." Dr. Klonis received Defendants' form letter, phoned them, and received in response a personal letter further explaining the reports of visual impairment. Defendants sent with their letter a list of references to medical publications reporting Amiodarone therapy coincident with ocular side effects.

Meanwhile, sometime in late March or early April 1997, Dr. Hamtil learned from an Audio Digest article that optic neuropathy had been associated with Amiodarone ingestion. He requested further information from the National Registry of Drug-Induced Ocular Side Effects. Upon receiving that information, he informed Dr. Klonis of the reported association between Amiodarone and optic neuropathy. Dr. Klonis took Nelson off the Cordarone on April 11, 1997. Nelson's vision has not improved.

III. THE NELSONS' CASE ON CAUSATION

A. Causation Evidence Required

To succeed on their products liability and negligence claims, the Nelsons must establish that ingestion of Cordarone more likely than not caused Rodger Nelson to lose his eyesight. To meet this burden in some jurisdictions, a plaintiff might be required to present evidence to "eliminate other causes that may fairly arise from the evidence." Kaplon v. Howmedica, Inc., 83 F.3d 263, 267 (8th Cir.1996) (applying Arkansas law) (internal quotation omitted). In Missouri, however, the Supreme Court has held that a plaintiff is not required "to exclude every causative factor, save that for which the defendant is liable." Kircher v. Purina Mills, Inc., 775 S.W.2d 115, 117 (Mo.1989) (en banc). See also Tenbarge v. Ames Taping Tool Systems, Inc., 128 F.3d 656, 658-659 (8th Cir.1997) (quoting Kircher). Thus, a plaintiff is not required to "prove an absolutely positive causal connection." Id. Instead, a submissible case on "`causation is made where the evidence is susceptible to a reasonable inference that injuries' to plaintiff resulted from defendant's product." Ray v. Upjohn Co., 851 S.W.2d 646, 654 (Mo.Ct.App.1993) (quoting Kircher, 775 S.W.2d at 117). "Such evidence establishes that the injury or damage is not merely the result of several equally probable causes." 775 S.W.2d at 117.

The Nelsons' brief in opposition to Defendants' summary judgment motion focuses less on actual causation and more on Defendants' knowledge about the occurrences of vision loss coincident with ingestion of Amiodarone. Indeed, the Nelsons' brief includes a rhetorical argument that equates causation with Defendants' decision to report the association between Amiodarone and vision loss in March 1997:

If the articles [cited by Defendants in their correspondence] were not authoritative regarding the issue of causation, why would [Defendants] send the additional warning information to 300,000-350,000 health care providers nationwide? The short answer is [Defendants] believed these articles to be authoritative or the letter would not have been sent and the March 1997 label change would not have been made.

See Plaintiffs' Brief in Opposition at 19. The Nelsons' reliance on Defendants'...