Wilhelm v. Pfizer, Inc., Case No. 2:06-cv-00529-RFB-GWF
| Decision Date | 19 September 2016 |
| Docket Number | Case No. 2:06-cv-00529-RFB-GWF |
| Parties | JOHN WILHELM, Plaintiff, v. PFIZER, INC. et al., Defendants. |
| Court | U.S. District Court — District of Nevada |
Before the Court are Defendants' and Plaintiff's Motions for Summary Judgment. ECF No. 46, 100. For the reasons stated below, the Court grants Defendants' Motion and denies Plaintiff's Motion.
This case was originally filed in 2006 by fourteen Plaintiffs, including Plaintiff John Wilhelm. ECF No. 1. The Complaint alleges that Plaintiffs suffered personal injuries as a result of taking Neurontin, a prescription drug developed, manufactured, sold, and distributed by Defendants Pfizer, Inc. and Warner-Lambert Company, LLC. ECF No. 2. The Complaint lists causes of action for fraud, negligence, negligence per se, breach of express warranty, and strict product liability. Id.
After its filing, this case was transferred to the Neurontin Multidistrict Litigation panel in the District of Massachusetts for coordinated or consolidated pretrial proceedings pursuant to 28 U.S.C. § 1407. Order, ECF No. 7. The MDL panel remanded the case to this Court on July 29, 2013, and on August 16, 2013, this Court permitted the withdrawal of counsel for the three remaining plaintiffs in the case. ECF No. 16, 20. As of September 2016, John Wilhelm is the only remaining plaintiff in this case, and he is proceeding pro se.
The Court entered a scheduling order on September 25, 2013. ECF No. 32. The last extension regarding this order was given on June 20, 2014. ECF No. 77. At the request of Wilhelm, this order extended Plaintiff's response deadline to Defendant's Motion for Summary Judgment to July 17, 2014. Id. Since that time, Plaintiff has not requested any additional extensions regarding discovery, or filing deadlines.
Defendants filed a Motion for Summary Judgment on February 28, 2014, arguing that Wilhelm cannot produce any expert evidence to prove that Neurontin was the cause of his injuries. ECF No. 46. The Court held a hearing regarding this Motion on January 26, 2016, indicating it would issue a written order regarding this Motion. ECF No. 87. The Court permitted supplemental briefing on the issue of judicial estoppel regarding Wilhelm's previous bankruptcy case filings in February 2016. Plaintiff filed a Motion for Summary Judgment on May 31, 2016. ECF No. 100. The Court held another hearing on September 6, 2016 regarding both motions.
Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show "that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a); accord Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). When considering the propriety of summary judgment, the court views all facts and draws all inferences in the light most favorable to the nonmoving party. Gonzalez v. City of Anaheim, 747 F.3d 789, 793 (9th Cir. 2014). If the movant has carried its burden, the non-moving party Scott v. Harris, 550 U.S. 372, 380 (2007) (alteration in original) (internal quotation marks omitted).
Fed. R. Civ. P. 26(a)(1) governs initial disclosures in discovery and requires that a party must provide, among other things, "(i) the name and, if known, the address and telephone number of each individual likely to have discoverable information--along with the subjects of that information--that the disclosing party may use to support its claims or defenses, unless the use would be solely for impeachment" and "(ii) a copy--or a description by category and location--of all documents, electronically stored information, and tangible things that the disclosing party has in its possession, custody, or control and may use to support its claims or defenses, unless the use would be solely for impeachment." The rule further provides that parties must supplement disclosures and responses. See Fed. R. Civ. P. 26(e) ().
"Rule 37(c)(1) gives teeth to these requirements by forbidding the use at trial of any information required to be disclosed by Rule 26(a) that is not properly disclosed." Yeti by Molly, Ltd. v. Deckers Outdoor Corp., 259 F.3d 1101, 1106 (9th Cir. 2001); See Fed. R. Civ. P. 37(c)(1) ().
After reviewing the evidence submitted by the parties, the Court finds the following undisputed facts.
Neurontin is a prescription medication used to treat epileptic seizures. Wilhelm was prescribed Neurontin to treat chronic pain resulting from nerve damage. Wilhelm was prescribedNeurontin from 1999 to 2005. During that period, he saw multiple physicians and healthcare providers, and he was prescribed other drugs during some or all of that period. Wilhelm's dosage of Neurontin varied between 1200 mg and 2400 mg per day.
On July 29, 2002, Wilhelm was admitted to the hospital in Butte, Montana and was found to have intentionally overdosed on a separate medication. He was taken to the intensive care unit and diagnosed as having attempted suicide.
On June 10, 2014, Plaintiff and his wife filed for Chapter 7 bankruptcy in Utah. Throughout this bankruptcy proceeding and the filings contained therein, Plaintiff never disclosed this lawsuit as required in various schedules and for various meetings or proceedings in the bankruptcy case. At the time of the bankruptcy case, Plaintiff was actively litigating this case. On September 20, 2014, Plaintiff and his wife received a discharge of his debts.
On January 26, 2016, the Court held a hearing regarding Defendant's Motion for Summary Judgment. ECF No. 87. After this hearing, Plaintiff submitted a Motion for Summary Judgment. ECF No. 100. In his Motion, Plaintiff attached medical records from Dr. Germin regarding Wilhelm's brain tumors dated September 12, 2002 and October 2, 2002; a medical record from Dr. Schaner regarding a spinal procedure dated September 19, 2002; and a medical record by Dr. Corry dated January 29, 2016. ECF No. 100. These medical records had not been previously disclosed to Defendant during or after the course of discovery, nor were they attached to Plaintiff's Opposition to Defendant's Motion for Summary Judgment. Plaintiff does not dispute that he could have submitted Dr. Germin and Dr. Schaner's records during discovery, and that he failed to do so. Plaintiff does not dispute that he obtained the medical record from Dr. Corry, attached to his Motion, after the Court held its hearing regarding Defendant's Motion in January 2016.
After reviewing the parties' briefs and exhibits, the Court finds that Defendants' Motion for Summary Judgment must be granted because Wilhelm has not produced any evidence that Neurontin was the specific cause of his injuries.
"A federal court sitting in diversity ordinarily must follow the choice-of-law rules of the State in which it sits." Atlantic Marine Const. Co., Inc. v. U.S. Dist. Court, 134 S.Ct. 568, 582 (2013). To determine which state's law to apply in tort claims, Nevada applies the Second Restatement's "most significant relationship" test. Gen. Motors Corp. v. Eighth Judicial Dist. Court, 134 P.3d 111, 116 (Nev. 2006). However, the most significant relationship test is a general rule, and if a more specific provision of the Second Restatement applies for a particular tort, courts should apply that provision. Id. at 117. Section 146 of the Second Restatement "provides a particularized framework for analyzing choice-of-law issues in personal injury cases." Id. Under Section 146, the rights and liabilities of the parties are determined by the law of the state where the injury occurred, unless "some other state has a more significant relationship" under the general principles of Section 6 of the Restatement. Rest. (Second) § 146, Conflict of Laws.
Here, the undisputed evidence shows that Wilhelm's attempted suicide occurred in Montana. Wilhelm's pharmacy records also show that he received the prescribed Neurontin in Montana. The Court also finds that no other state has a more significant relationship to the occurrence and parties. Therefore, the Court will apply Montana law to Wilhelm's claims.
Wilhelm asserts five causes of action in his Complaint: fraud, negligence, negligence per se, breach of express warranty, and strict products liability. ECF No. 2.
Under Montana law, an essential element of each of Wilhelm's five causes of action is that the defendant's action or inaction must have caused the plaintiff's injury. See, e.g., Morrow v. Bank of Am., N.A., 324 P.3d 1167, 1182 (Mont. 2014) (); Fisher v. Swift Transp. Co, Inc., 181 P.3d 601, 606 (Mont. 2008) (); Stipe v. First Interstate Bank, 188 P.3d 1063,...
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