Reeves v. Geigy Pharmaceutical, Inc., a Div. of Ciba-Geigy Corp.

• Decision Date: 18 November 1988
• Docket Number: No. 880287-CA,CIBA-GEIGY,880287-CA
• Citation: 764 P.2d 636
• Court: Utah Court of Appeals
• Parties: Larry Ray REEVES, Plaintiff and Appellant, v. GEIGY PHARMACEUTICAL, INC., A DIVISION OFCORP., a New York corporation; Eli Lilly & Co., an Indiana corporation; and Gerald R. Moress, M.D., Defendants and Respondents.

Page 636

764 P.2d 636

Larry Ray REEVES, Plaintiff and Appellant, v. GEIGY PHARMACEUTICAL, INC., A DIVISION OF CIBA-GEIGY CORP. a New York corporation; Eli Lilly & Co., an Indiana corporation; and Gerald R Moress, M.D., Defendants and Respondents.

No. 880287-CA.

Court of Appeals of Utah.

Nov. 18, 1988.

Kathryn P. Collard (argued), Salt Lake City, for plaintiff and appellant.

P. Keith Nelson (argued), Salt Lake City, Richards, Brandt, Miller & Nelson, for defendants and respondents.

David B. Watkiss, Tracy H. Fowler, Watkiss & Campbell, Salt Lake City, for defendant and respondent, Geigy.

E. Scott Savage, Van Cott, Bagley, Cornwall & McCarthy, Salt Lake City, for defendant and respondent, Eli Lilly.

Before GARFF, BENCH and JACKSON, JJ.

OPINION

JACKSON, Judge:

Larry Ray Reeves ("Reeves") appeals from an adverse summary judgment in favor of all respondents. He contends the trial court abused its discretion by denying him additional discovery time in which to obtain affidavits opposing those filed in support of respondents' motions. Alternatively, he asserts the record before the trial court presented a disputed issue of material fact precluding summary judgment. We affirm in part, reverse in part, and remand.

In 1974, while attending the sixth grade, Reeves began experiencing epileptic seizures. He was treated over the next six years by several doctors who, despite the use of different drug regimens that included Phenobarbital, Dilantin, Mesantoin, and Valproic Acid, had difficulty in controlling the frequency and intensity of appellant's seizures. He was eventually referred to respondent Dr. Gerald R. Moress ("Moress"), a neurologist, in August 1980. Moress saw Reeves approximately six times over the next thirteen months, prescribing Dilantin, Phenobarbital, Mesantoin, and Tegretol during this period. At the time of his September 9, 1981 office visit, Reeves was taking both Phenobarbital and Tegretol prescribed by Moress. ¹

On the morning of October 31, 1981, after showering, Reeves noted that the top layer of his skin had started to peel off. He was admitted in shock as an emergency patient to the burn unit at the University of Utah Medical Center. Dr. Glen Warden, a burn specialist and Reeves's primary attending physician from that point, estimated Reeves had lost fifty-five percent of his superficial skin by the time of admission. Although a scalding burn was considered, Dr. Warden made an admission diagnosis of appellant's condition as "toxic epidermal necrolysis" ("T.E.N."), a general term used to describe dermatological disorders that result in blistering and loss of skin to varying degrees. A histological examination two days after admission showed Reeves's skin injury to be full thickness, meaning the dermis as well as the epidermis was destroyed, a symptom atypical of patients diagnosed as suffering from T.E.N. Seven days after Reeves's admission to the burn unit, however, an additional ten percent of his skin blistered and sloughed off, a progression that is characteristic of T.E.N. He remained an inpatient for approximately one month and was thereafter seen daily at the outpatient burn unit, requiring several readmissions for surgery to graft skin and correct the scarring process.

Appellant Reeves filed this action in February 1984 against respondents Geigy Pharmaceutical, Inc. ("Geigy"), manufacturer of the anticonvulsant carbamazepine, sold under the name Tegretol; Eli Lilly & Co. ("Lilly"), manufacturer of Phenobarbital; and Dr. Moress. Alleging his injuries were caused by these drugs, he sought damages for full thickness skin injuries to more than two-thirds of his body; damage to organs, tissues, and muscles; severe, permanent scarring and disfigurement; extreme physical and mental anguish; loss of earnings and earning capacity; and medical expenses in excess of $200,000. His eight causes of action against the three defendants can be summarized as follows: (1) Geigy and Lilly are liable for the release of defective products and/or the negligent design, testing, manufacture, marketing, distribution, labelling, and promotion of the drugs Tegretol and Phenobarbital, and for failure to give adequate warning of their possible side effects; Moress is included in the product liability claim because of his part in the prescription, distribution, and sale of the allegedly defective products; (2) Geigy, Lilly, and Moress breached express and implied warranties and made actionable misrepresentations to Reeves; (3) Geigy, Lilly, and Moress breached warranties of merchantability and fitness for a particular purpose; (4) Moress breached the warranty of fitness for a particular purpose; (5) Moress intentionally failed to warn of the substantial and significant risks of serious harm resulting from the use of Tegretol and/or Phenobarbital, including the injuries actually suffered by Reeves, resulting in a failure to obtain Reeves's informed consent to the drug treatment; (6) Moress negligently failed to inform appellant of the same; (7) Moress negligently treated Reeves by prescribing Tegretol and Phenobarbital, by failing to conduct recommended pretreatment tests, and by failing to monitor the dosage levels; and (8) Geigy and Lilly misbranded the drugs Tegretol and Phenobarbital in violation of federal law.

After respondents filed their answers, appellant commenced discovery, sending interrogatories and requests for production of documents in April 1984. By January 1985, the parties had taken the depositions of Reeves, his mother, Dr. Warden, and Drs. Michael Piepkorn and William Zone, dermatologists at the University Medical Center specializing in skin pathology and immunopathology, respectively. Appellant filed another request for production of documents by respondent Geigy in February 1985.

Respondent Moress filed a motion for summary judgment in April 1986 on the grounds that he had complied with existing standards of care in treating appellant and that Tegretol and Phenobarbital were not the proximate cause of appellant's injuries. He supported his motion with the affidavits of two local physicians. Dr. Leonard Swinyer, a dermatologist, stated his opinion, based on his own medical experience and his review of the histological and clinical findings in appellant's medical records, that T.E.N. was not present in this case. Instead, he opined, Reeves "suffered from a peculiar eruption that looked like T.E.N., but histologically either represented a burn or some other disorder not previously identified in the medical literature." He also concluded that, whatever Reeves's skin disorder was, it was not caused by the medications Moress prescribed. Although the affidavit indicates he is certified by the American Board of Dermatopathology, Dr. Swinyer did not assert any particular expertise in, or experience with, drug reactions, T.E.N., or other blistering skin disorders. ² In his affidavit, Dr. Thompson stated that the type and dosages of medications prescribed by Moress were appropriate given Reeves's seizure disorder and prior medical history, adding that the laboratory tests suggested in the medical literature for monitoring patients on Tegretol would not have predicted a cutaneous reaction to it. In his opinion, Thompson concluded, Moress complied with the applicable standard of care in his treatment of Reeves.

On April 30, 1986, respondents Geigy and Lilly filed a joint motion for summary judgment, relying on the grounds asserted by respondent Moress and on his supporting affidavits and memorandum. Shortly thereafter, appellant filed a motion to extend time for discovery pursuant to Utah R.Civ.P. 56(f) and to continue the hearing date on respondents' summary judgment motions. In support of his motion, appellant submitted the affidavit of his counsel asserting a need for additional time in which to obtain affidavits to oppose those of Drs. Thompson and Swinyer. ³ After a stipulated continuance because of prior court commitments of appellant's counsel, a hearing was held on June 2, 1986. The trial court denied appellant's motion to extend discovery and granted summary judgment to respondents, dismissing appellant's complaint with prejudice on June 18, 1986.

MOTION TO EXTEND DISCOVERY

On appeal, Reeves first asserts that the trial court abused its discretion by not granting him further discovery time prior to ruling on the merits of the summary judgment motions. Rule 56(f) provides that a party opposing summary judgment may file an affidavit stating reasons why he is presently unable to submit evidentiary affidavits in opposition to the moving party's supporting affidavits. Such a request should be liberally treated, unless dilatory or lacking in merit. Strand v. Associated Students of the University of Utah, 561 P.2d 191, 194 (Utah 1977). See Callioux v. Progressive Ins. Co., 745 P.2d 838, 840 (Utah App.1987). It is for the trial court, in the exercise of its sound discretion, to determine if the reasons stated in the Rule 56(f) affidavit are adequate. Cox v. Winters, 678 P.2d 311, 313 (Utah 1984). In making that determination, the trial court considers whether the party against whom summary judgment is sought seeks additional discovery time to uncover purely speculative facts after substantial discovery has already been conducted; whether the other party has appropriately responded to discovery requests; and whether sufficient time has already passed since the inception of the lawsuit for use of discovery procedures. Downtown Athletic Club v. Horman, 740 P.2d 275, 278 (Utah App.1987). If the court finds the reasons stated in the Rule 56(f) affidavit adequate, it may, among other things, continue the summary judgment motion and provide additional time to submit opposing affidavits. Id.

Applying these principles, we hold that the trial court did not abuse its discretion in denying appellant's Rule 56(f) request. The affidavit of Reeves's counsel contains only one assertion pertinent to...