Filed: Apr. 29, 2011
Latest Update: Feb. 22, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-1566 ENERY FERNANDEZ-PINEIRO, et al., Plaintiffs - Appellants, v. BAUSCH & LOMB, INC., Defendant - Appellee. No. 10-1599 In Re: BAUSCH & LOMB INCORPORATED CONTACT LENS SOLUTION PRODUCTS LIABILITY LITIGATION; SPECIAL MASTER DANIEL CAPRA. - SAMUEL CRUZ DE JESUS; EDUARDO RODRIGUEZ; MARIA T. BURGOS; IRIS AQUILES RAMOS, Plaintiffs – Appellants, and EVA I. GARCIA; SHIRLEY MELENDEZ RIVERA; ELIZABETH MENDEZ SOTO; ZENAIDA LOPEZ ORTI
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-1566 ENERY FERNANDEZ-PINEIRO, et al., Plaintiffs - Appellants, v. BAUSCH & LOMB, INC., Defendant - Appellee. No. 10-1599 In Re: BAUSCH & LOMB INCORPORATED CONTACT LENS SOLUTION PRODUCTS LIABILITY LITIGATION; SPECIAL MASTER DANIEL CAPRA. - SAMUEL CRUZ DE JESUS; EDUARDO RODRIGUEZ; MARIA T. BURGOS; IRIS AQUILES RAMOS, Plaintiffs – Appellants, and EVA I. GARCIA; SHIRLEY MELENDEZ RIVERA; ELIZABETH MENDEZ SOTO; ZENAIDA LOPEZ ORTIZ..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-1566
ENERY FERNANDEZ-PINEIRO, et al.,
Plaintiffs - Appellants,
v.
BAUSCH & LOMB, INC.,
Defendant - Appellee.
No. 10-1599
In Re: BAUSCH & LOMB INCORPORATED CONTACT LENS SOLUTION
PRODUCTS LIABILITY LITIGATION; SPECIAL MASTER DANIEL CAPRA.
------------------------------
SAMUEL CRUZ DE JESUS; EDUARDO RODRIGUEZ; MARIA T. BURGOS;
IRIS AQUILES RAMOS,
Plaintiffs – Appellants,
and
EVA I. GARCIA; SHIRLEY MELENDEZ RIVERA; ELIZABETH MENDEZ
SOTO; ZENAIDA LOPEZ ORTIZ; NILSA RIVERA, on her own behalf
and in representation of her minor daughter Marnie N.
Sanchez Rivera,
Plaintiffs,
v.
BAUSCH & LOMB, INC.,
Defendant – Appellee,
and
INSURANCE COMPANY ABC,
Defendant.
No. 10-1601
In Re: BAUSCH & LOMB INCORPORATED CONTACT LENS SOLUTION
PRODUCTS LIABILITY LITIGATION; SPECIAL MASTER DANIEL CAPRA.
------------------------------
RUDOLPH V. DECLET-FLORES; MARIELI TIRADO-LOPEZ; CONJUGAL
PARTNERSHIP DECLET-TIRADO; HECTOR MENDEZ,
Plaintiffs – Appellants,
v.
BAUSCH & LOMB, INC.,
Defendant – Appellee,
and
INSURANCE COMPANY ABC,
Defendant.
No. 10-1634
In Re: BAUSCH & LOMB INCORPORATED CONTACT LENS SOLUTION
PRODUCTS LIABILITY LITIGATION; SPECIAL MASTER DANIEL CAPRA.
------------------------------
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NOEMI CORTES-IRIZARRY,
Plaintiff – Appellant,
v.
BAUSCH & LOMB, INC.,
Defendant - Appellee.
Appeals from the United States District Court for the District
of South Carolina, at Charleston. David C. Norton, Chief
District Judge. (2:06-cv-02702-DCN; 2:06-cv-03273-DCN; 2:06-cv-
03272-DCN; 2:06-cv-03477-DCN; 2:06-mn-77777-DCN)
Submitted: April 18, 2011 Decided: April 29, 2011
Before MOTZ, DUNCAN, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Eric Quetglas-Jordan, QUETGLAS LAW OFFICE, San Juan, Puerto
Rico; E. Kirk Wood, Jr., WOOD LAW FIRM, L.L.C., Birmingham,
Alabama; John E. Mudd, LAW OFFICES OF JOHN E. MUDD, San Juan,
Puerto Rico; Emilio F. Soler, SOLER & SOLER, San Juan, Puerto
Rico, for Appellants. Marie S. Woodbury, Eric M. Anielak,
SHOOK, HARDY & BACON, L.L.P., Kansas City, Missouri; Michael T.
Cole, William C. Wood, Jr., NELSON, MULLINS, RILEY &
SCARBOROUGH, L.L.P., Charleston, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
In these consolidated appeals, Enery Fernandez-
Pineiro, Samuel Cruz de Jesus, and Rudolph Declet-Flores
(collectively “Summary Judgment Appellants”) appeal the district
court’s judgment granting summary judgment in favor of Bausch &
Lomb, Inc. (“Bausch & Lomb”) on their products liability claims,
and Noemi Cortés-Irizarry appeals the court’s judgment denying
her Fed. R. Civ. P. 59(e) motion to alter or amend. We affirm.
Bausch & Lomb manufactured the multipurpose contact
lens solution ReNu MoistureLoc (“MoistureLoc”) for use in the
daily cleaning and disinfection of certain contact lenses.
Pursuant to FDA standards, Bausch & Lomb tested MoistureLoc and
believed that it was effective in killing the microorganisms
that cause eye infections. In 2006, nearly two years after
Bausch & Lomb began marketing MoistureLoc in the United States,
outbreaks of Fusarium keratitis, a fungal eye infection, were
reported among MoistureLoc users. Bausch & Lomb began an
investigation into the connection between MoistureLoc and
Fusarium keratitis and withdrew MoistureLoc from stores. In
late 2006, the Centers for Disease Control (“CDC”) and FDA
published findings indicating that users of MoistureLoc were at
an increased risk for developing Fusarium keratitis.
Following the FDA and CDC reports, and Bausch & Lomb’s
decision to remove MoistureLoc from the market, users of
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MoistureLoc instituted products liability actions against Bausch
& Lomb in courts around the country. Suits (including those
commenced by the Appellants in this action) that were commenced
in or removed to federal court were consolidated for pre-trial
proceedings in South Carolina district court by order of the
Judicial Panel on Multidistrict Litigation.
The plaintiffs in the district court proceedings were
made up of two groups: those who had suffered from Fusarium
keratitis, and those who had suffered from other eye infections
not related to the Fusarium strain. Bausch & Lomb contends that
those plaintiffs who alleged they had suffered non-Fusarium
infections could not demonstrate that their use of MoistureLoc
caused the infections. After a hearing conducted pursuant to
Fed. R. Evid. 702 and Daubert v. Merrell Dow Pharmaceuticals,
Inc., 509 U.S. 579, 592 (1993), the district court excluded as
unreliable the only causation evidence the plaintiffs had put
forth on their non-Fusarium claims. Bausch & Lomb moved for
summary judgment against the non-Fusarium plaintiffs, and the
court granted the motion.
After summary judgment was granted, Cortés-Irizarry
moved, pursuant to Fed. R. Civ. P. 59(e), to alter or amend the
judgment or to reconsider. Cortés-Irizarry claimed, for the
first time, that she had medical evidence to support a claim
that she suffered from Fusarium keratitis. Cortés-Irizarry
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attached to her motion a report in support of her claim by Dr.
Carmen Santos. The report suggested that Cortés-Irizarry’s
illness may be related to the Fusarium bacteria. The court,
however, denied the motion on the grounds that the report was
available prior to the hearing on summary judgment and Cortés-
Irizarry did not present it to the court at that time. This
appeal followed.
I. Summary Judgment (Nos. 10-1566/1599/1601)
This court reviews de novo a district court’s order
granting summary judgment and views the facts in the light most
favorable to the nonmoving party. Rowzie v. Allstate Ins. Co.,
556 F.3d 165, 167 (4th Cir. 2009). Summary judgment is
appropriate when no genuine issue of material fact exists and
the moving party “is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a). Summary judgment will be granted unless
“a reasonable jury could return a verdict for the nonmoving
party” on the evidence presented. Anderson v. Liberty Lobby,
Inc.,
477 U.S. 242, 248 (1986).
a. Failure to Warn Negligence
Summary Judgment Appellants first claim that the court
either misconstrued or ignored their failure to warn negligence
claim. Under Puerto Rican law, which the parties agree applies
6
to the substantive issues adjudicated on summary judgment, to
satisfy the elements of a failure to warn claim, the plaintiff
must prove “(1) the manufacturer knew, or should have known of
the risk inherent in the product; (2) there were no warnings or
instructions, or those provided were inadequate; (3) the absence
of warnings made the product inherently dangerous; (4) the
absence of adequate warnings or instructions was the proximate
cause of plaintiff's injury.” Cruz-Vargas v. R.J. Reynolds
Tobacco Co., 348 F.3d 271, 276 (1st Cir. 2003) (internal
citations omitted).
Summary Judgment Appellants argue that the district
court erred by imposing a requirement that they offer proof of a
products defect in order to satisfy the elements of negligent
failure to warn. They claim that the district court conflated
the elements of strict liability failure to warn with negligent
failure to warn, and that under Puerto Rican law, they have
offered sufficient evidence to survive summary judgment. They
claim that they have presented a valid claim that Bausch & Lomb
would still be liable due to its failure to warn plaintiffs that
they could suffer eye infections notwithstanding their use of
MoistureLoc, even in the absence of a product defect.
We have reviewed the record, and conclude that their
claim is without merit. Even if Puerto Rican law supports their
claim, the record is devoid of any evidence to survive a motion
7
for summary judgment. To the extent that Summary Judgment
Appellants properly pled and preserved this cause of action,
they have adduced no evidence to support it. See Celotex Corp.
v. Catrett, 477 U.S. 317, 322-23 (1986) (no genuine issue of
material fact where the nonmoving party makes a complete failure
of proof concerning an essential element of the nonmoving
party’s case).
b. Causation
Summary Judgment Appellants next argue that the
district court erred in imposing a requirement of general
causation where the laws of Puerto Rico recognize no such
requirement. They argue that Puerto Rican courts simply reject
the concept of general causation, and instead, focus on whether
the plaintiffs were able to adduce evidence of “adequate cause.”
“Adequate cause, parallel to proximate cause, is that which, in
light of general experience, ordinarily produces the damages
suffered. In other words, that which in the ordinary and normal
course of events would have resulted in the occurrence of
plaintiffs’ damages.” Perez v. Hyundai Motor Co. 440 F. Supp.
2d 57, 73-74 (D.P.R. 2006).
We find the distinction Summary Judgment Appellants
attempt to draw between adequate cause and general causation
unpersuasive. Under either standard, the Plaintiffs must prove
8
that a product defect in MoistureLoc caused their injuries. At
the Daubert hearing, the district court essentially rejected
that claim for non-Fusarium plaintiffs. See In re Bausch & Lomb
Inc., Contact Lens Solution Prods. Liab. Litig., No. 2:06-MN-
77777-DCN (D.S.C. Aug. 26, 2009). In addition, Fed. R. Evid.
702 allows expert testimony only to the extent that it is
reliable. Summary Judgment Appellants adduced no reliable
expert testimony prior to summary judgment showing that
MoistureLoc caused their injuries. Accordingly, we decline to
disturb the district court’s grant of summary judgment.
II. Rule 59(e) Motion (No. 10-1634)
Cortés-Irizarry appeals the district court’s order
denying her Fed. R. Civ. P. 59(e) motion to alter or amend the
order granting summary judgment. “This court reviews the denial
of a Rule 59(e) motion under the deferential abuse of discretion
standard.” Robinson v. Wix Filtration Corp., 599 F.3d 403, 407
(4th Cir. 2010). To demonstrate entitlement to relief under
Rule 59(e), a movant has to demonstrate (1) an intervening
change in controlling law; (2) new evidence not available at
trial; or (3) that there has been a clear error of law or a
manifest injustice. Pac. Ins. Co. v. Am. Nat’l Fire Ins. Co.,
148 F.3d 396, 403 (4th Cir. 1998). Measured against these
9
requirements, the district court’s denial of Cortés-Irizarry’s
Rule 59(e) motion easily survives appellate scrutiny.
While Rule 59 “permits a district court to correct its
own errors, sparing the parties and the appellate courts the
burden of unnecessary appellate proceedings,” motions under
that rule may not be used “to raise arguments which could have
been raised prior to the issuance of the judgment[.]” Id.
(citing cases). The record reveals that Cortés-Irizarry’s
medical expert report was dated September 2009; nearly four
months before the hearing on Bausch & Lomb’s summary judgment
motion. Cortés-Irizarry did not file a separate response to the
motion for summary judgment. Rather, she relied on the general
response from the Plaintiff’s Steering Committee. In her brief
on appeal, Cortés-Irizarry states that she relied on the general
response because she deemed it to be “a legally comprehensive
document.” This misjudgment, which caused her to fail to
provide relevant evidence to the district court prior to summary
judgment, was not adequate justification to permit her to reopen
her case. Accordingly, we conclude that the district court did
not abuse its discretion in denying Cortés-Irizarry’s Rule 59(e)
motion.
We therefore affirm the judgment of the district
court. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
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before the court and argument would not aid the decisional
process.
AFFIRMED
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