ALLISON CLAIRE, Magistrate Judge.
Plaintiff is proceeding in this matter pro se, and pretrial proceedings are accordingly referred to the undersigned pursuant to Local Rule 302(c)(21). Pending is a motion for summary judgment from defendant Pfizer, Inc. ("Pfizer"), which has been fully briefed. ECF No. 95 (motion); ECF Nos. 97, 98, 99 (plaintiff's response); ECF No. 103 (Pfizer's reply). The matter came on for hearing on June 27, 2019. Plaintiff appeared in pro se; attorneys Brooke L. Kim and Andrew D. Day appeared for Pfizer. ECF No. 104. For the reasons stated below, the undersigned recommends the motion for summary judgment be GRANTED.
Plaintiff Edward G. Viramontes ("Plaintiff") is pursuing a claim for loss of consortium.
On July 17, 2015, plaintiff and Ms. Viramontes filed this lawsuit in Sacramento Superior Court alleging negligence, strict products liability, and loss of consortium. ECF No. 1-1, Ex. A. Defendant removed the action to this court on the basis of diversity jurisdiction. ECF No. 1. On February 23, 2016, Ms. Viramontes' negligence and strict products liability claims were dismissed with prejudice as barred by the statute of limitations. ECF No. 31 (adopting Findings and Recommendations at ECF No. 23). Plaintiff's loss of consortium claim was dismissed with leave to amend if Mr. Viramontes "could truthfully allege that his loss of consortium did not begin on or after July 18, 2013." ECF No. 23 at 17:23-18:4 (emphasis original). Plaintiff's First Amended Complaint (ECF No. 51) was dismissed with leave to amend for failure to allege causation. ECF No. 68 (adopting in full Findings and Recommendations at ECF No. 62). Plaintiff filed his Third Amended Complaint ("TAC") on January 13, 2017. ECF No. 71. Ms. Viramontes was terminated as a plaintiff.
Plaintiff alleges that he suffered a loss of consortium as a result of three dermatomyositis-related surgeries that his wife underwent between 2014 and 2016, as well as the symptoms associated with Ms. Viramontes' Chronic Fatigue Syndrome, which was diagnosed in 2016. TAC at ¶¶ 27-33. Plaintiff alleges:
Defendant moves for summary judgment on the following grounds: (1) plaintiff fails to prove causation, (2) plaintiff's claim is time-barred in its entirety, and (3) plaintiff cannot establish the underlying tort of failure to warn. ECF No. 95 at 2; ECF No. 103 at 2.
Unless otherwise specified, the following facts are either expressly undisputed by the parties or have been determined by the court, upon full review of the record, to be undisputed by competent evidence. The defendant's statement of undisputed facts is located at ECF 95-6. Plaintiff's responses are located at ECF No. 98 at ¶¶ 1-7.
In April 2002, Ms. Viramontes developed carpel tunnel syndrome and tendinitis of the wrist, associated with her work as a waitress. Declaration of Brooke Kim at ECF No. 95-1 Ex. 28, ECF No. 95-4 at 14. On May 13, 2002, Dr. James Hebard, M.D., a workman's compensation doctor, first prescribed Celebrex to Ms. Viramontes. Kim Decl. Ex. 1, ECF No. 95-2 (Certified Deposition Transcript of Sharon Viramontes, Vol. 1, May 25, 2006 ("S.V. 2006 Depo.") at 235:15-236:6, 238:22-24;
On January 9, 2003, Dr. Prahbas Tung, M.D., a hand surgeon, prescribed Celebrex and another drug, Bextra, for Ms. Viramontes and she began taking Celebrex again. Kim Decl. Ex. 36, ECF No. 95-4 at 41-42. On March 24, 2003, Ms. Viramontes reported to Dr. Conrad Tsai, M.D., her endocrinologist, that she had experienced consistent hair loss since November or December of 2002. Kim Decl. Ex. 27, ECF No. 95-4 at 9. On April 11, 2003, Ms. Viramontes reported a worsening rash, leg swelling, and continued hair loss to Dr. Tsai. Kim Decl. Ex. 26, ECF No. 95-4 at 2. Dr. Tsai then instructed Ms. Viramontes to stop taking Celebrex, and she states that she followed his instruction. S.V. 2006 Depo. at 85:13-22.
On January 10, 2005, Ms. Viramontes filed suit against defendant Pfizer in Sacramento Superior Court relating to injuries she allegedly suffered after taking Celebrex and another drug, Bextra. ECF No. 6-3;
ECF No. 6-5 at 4-5;
On September 28, 2010, a California state workers' compensation Qualified Medical Examiner, Dr. David Kneapler (now deceased) suggested that Ms. Viramontes' symptoms in 2003 and 2004 might indicate dermatomyositis. Kim Decl. Ex. 37, ECF No. 95-4 at 44-50. This 2010 report also states that Ms. Viramontes' "husband does all the cooking, cleaning, and yard work. Indeed, she no longer does any of these activities because of her illness."
Plaintiff has been married to Sharon Viramontes since September 12, 1981. TAC at ¶ 6. On June 15, 2006, plaintiff testified that Ms. Viramontes could no longer do "yard work" or "lift[] things," and "doesn't have the strength she used to have" after using Celebrex. Kim Decl. Ex. 5, ECF No. 95-2 (Deposition Transcript of Eddie Garth Viramontes, June 26, 2006 ("E.V. 2006 Depo.")) at 170:1-15. Plaintiff also stated that, as a result of her Celebrex use, Ms. Viramontes was unable to "enjoy camping," "fold laundry," or "vacuum."
At his December 20, 2017 deposition, plaintiff testified that beginning in 2003 and 2004, Ms. Viramontes "was always too tired to do like anything around the house" which compelled him to "[take] over" responsibilities such as laundry and cooking. Kim Decl. Ex. 6, ECF No. 95-2 (Videotaped Deposition Transcript of Edward G. Viramontes, December 20, 2017 ("E.V. 2017 Depo.")) at 68:16-69:23. Plaintiff again testified in his 2017 deposition that the reason he and his wife did not have intercourse between 2003 and 2004 was "[b]ecause she was always too tired, in pain, or it just was the wrong timing. There was always something wrong with her."
At her December 20, 2017 deposition, Ms. Viramontes testified that, prior to 2003, she "did all the yard work" as well as other household chores, including painting the house, restoring cabinet doors, and installing floors, but that she was unable to do those things after her symptoms began in 2003 and 2004. Kim Decl. Ex. 4, ECF No. 95-2 (Videotaped Deposition Transcript of Sharon Viramontes, December 20, 2017 (S.V. 2017 Depo.)) at 68:1-18. She further acknowledged that her role in the household was picked up in part by plaintiff.
In a report dated January 24, 2018, defendant's proposed expert Dr. Gary Williams stated that no scientific research suggests that Celebrex causes dermatomyositis or Chronic Fatigue Syndrome. ECF No. 92-1 at 5, 7-8. On July 10, 2006, Dr. James Hebard, M.D., an occupational medicine doctor who refilled Ms. Viramontes' Celebrex prescription on May 15, 2002, testified that he did not believe such an extensive list of symptoms would be caused "just from Celebrex." Kim Decl. Ex. 10, ECF No. 95-2 (Deposition of James A. Hebard, July 19, 2006 ("Hebard Depo.")) at 83:21-84:2. On June 30, 2006, Dr. Jerry Huang, D.O., family medicine practitioner, testified that at the time he treated Ms. Viramontes on March 24, 2005, he did not link Celebrex with the symptoms she was experiencing, namely the joint pain and rash. Kim Decl., Ex. 11, ECF No. 95-2 (Deposition of Jerry Huang, D.O., June 30, 2006 ("Huang Depo.")) at 20:16-21:4. On June 13, 2006, Dr. Dennis Daughters, M.D., a dermatologist who treated Ms. Viramontes, testified to his knowledge that the reactions she experienced, including hair loss, began before she started taking Celebrex. Kim Decl. Ex. 7, ECF No. 95-2 (Deposition of Dennis Daughters, M.D., June 13, 2006 ("Daughters Depo.")) at 39:16-23; 56:19-57:4.
The court ordered the parties to designate experts no later than January 24, 2018 and rebuttal experts no later than February 14, 2018, and set a discovery cut-off date of March 21, 2018. ECF No. 91. Plaintiff did not disclose any expert, whether retained or non-retained. In his initial disclosures, plaintiff failed to disclose any treating physicians that he intended to use to support his claims. Kim Decl. Ex. 44, ECF No. 95-5 at 73.
The Celebrex label in effect in May 2002 was approved by the U.S. Food and Drug Administration ("FDA") on October 18, 2001. Kim Decl. Ex. 42, ECF No. 95-5. The Celebrex label states:
Kim Decl. Ex. 41 (label dated December 31, 1998), ECF 95-5 at 8; Kim Decl. Ex. 42 (label dated October 18, 2001) at 12; Kim Decl. Ex. 43 (label dated June 7, 2002) at 11. Plaintiff states that he and Ms. Viramontes "cannot produce any literature" proving defendant warned that Celebrex may cause dermatomyositis or Chronic Fatigue Syndrome and "have concluded none exist." ECF No. 98 at ¶ 7. Plaintiff does not provide evidence that, at the time of either of Ms. Viramontes' Celebrex prescriptions in 2002 and 2003, defendant was aware of any newly acquired information that Celebrex was associated with a risk of harm unknown to the FDA and undisclosed in the label. Kim Decl. Ex. 44 (plaintiff's Initial Disclosures), ECF No. 95-5 at 73.
Defendant moves for summary judgment on grounds that (1) plaintiff cannot show causation, (2) the complaint is time-barred in its entirety, and (3) the failure to warn claim lacks evidence. The court agrees that judgment must be entered for defendant as a matter of law.
Summary judgment is appropriate when the moving party "shows 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). "A party may move for summary judgment, identifying each claim . . . or the part of each claim . . . on which summary judgment is sought.
Under summary judgment practice, "[t]he moving party initially bears the burden of proving the absence of a genuine issue of material fact."
"Where the non-moving party bears the burden of proof at trial, the moving party need only prove that there is an absence of evidence to support the non-moving party's case."
If the moving party meets its initial responsibility, the burden then shifts to the opposing party to establish that a genuine issue as to any material fact actually does exist.
In the endeavor to establish the existence of a factual dispute, the opposing party need not establish a material issue of fact conclusively in its favor. It is sufficient that "`the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial.'"
To establish a genuine dispute of material fact, a plaintiff must present affirmative evidence; "[b]ald assertions that genuine issues of material fact exist are insufficient."
Finally, to demonstrate a genuine issue, the opposing party "must do more than simply show that there is some metaphysical doubt as to the material facts."
In applying these rules, district courts must "construe liberally the filings and motions of a pro se [litigant] in a civil suit."
Plaintiff's only remaining claim is loss of consortium. ECF No. 62 at 2. "[I]n California each spouse has a cause of action for loss of consortium . . . caused by a negligent or intentional injury to the other spouse by a third party.'"
"In a federal diversity action brought under state law, the state statute of limitations controls."
The undersigned previously granted plaintiff the opportunity to amend his claim in response to a facial challenge on timeliness grounds, and emphasized that he should do so only if he could "truthfully allege that his loss of consortium did not begin until on or after July 18, 2013." ECF No. 23 at 17 (emphasis original). In response, plaintiff asserts that his loss of consortium is based on the following:
TAC at ¶¶ 28-31.
Plaintiff contends that his wife's three dermatomyositis-related surgeries and Chronic Fatigue Syndrome diagnosis give him a loss of consortium claim that arose in 2014. E.V. 2017 Depo. at 36:10-14; ECF No. 98 at ¶¶ 5-6. Defendant argues that although plaintiff claims his loss of consortium arises from these surgeries, plaintiff has testified that the alleged wrongful conduct that led to those surgeries occurred in 2003 and that he began experiencing infrequent marital intimacy and household assistance in 2003 and 2004. E.V. 2017 Depo. at 65: 13-17, 69:24-72:24. Defendant argues that plaintiff's loss of consortium began, as a matter of law, in 2003 when his marriage first suffered from the "loss of sexual relationship and household services." ECF No. 95 at 17. Defendant argues that these losses triggered the statute of limitations on plaintiff's loss of consortium claim, regardless of his wife's later diagnosis.
Plaintiff has not produced evidence which supports a reasonable conclusion that his loss of consortium occurred after July 18, 2013. Indeed, the record is replete with evidence, including contradictory statements by plaintiff, that makes it impossible for him to evade the statute of limitations. Plaintiff now states that prior to March 6, 2014, he was "happy and content with his wife's love, companionship, comfort, affection, moral support, enjoyment of sexual relation, and physical assistance in the operation as well as financial support of the home." TAC at ¶ 32. However, in multiple depositions, as recent as 2017, plaintiff directly contradicts this assertion. Plaintiff testified that Ms. Viramontes "was always too tired to do anything around the house" compelling him to "[take] over" household responsibilities beginning in 2003 and 2004. E.V. 2017 Depo. at 68:16-69:2, 71:15-23. Plaintiff also stated that between 2003 and 2005, Ms. Viramontes could not help around the house whereas prior to 2003, and prior to her Celebrex use, she did all the yard work and other household chores.
Plaintiff testified that as early as 2003, Ms. Viramontes' dermatomyositis and Chronic Fatigue Syndrome, which she allegedly experienced as a direct result of taking Celebrex, caused plaintiff's diminished enjoyment of sexual relations. E.V. 2017 Depo. at 65:7-17. Plaintiff stated that he and Ms. Viramontes were not having intercourse on a regular basis between 2003 and 2006.
Plaintiff attempts to avoid the time bar by arguing that his wife's symptoms of 2003 and 2004 subsequently improved, ending that period of loss of consortium, and he later suffered a new loss when Ms. Viramontes experienced limiting symptoms from her surgeries and Chronic Fatigue Syndrome in 2014 and 2016, essentially "restarting" his claim.
Accordingly, plaintiff's claim is time-barred. A reasonable jury could not credit plaintiff's testimony that his loss of consortium did not occur until on or after July 18, 2017, because he has indicated multiple times that he earlier suffered a loss of consortium as a result of his wife's Celebrex use. Loss of consortium occurs not upon confirmation of a diagnosis or undergoing treatment, but rather when plaintiff experiences an actual loss of a spouse's services and companionship.
Plaintiff's own inconsistent statements cannot create a triable issue of fact precluding summary judgment.
To prevail on a loss of consortium claim, plaintiff must prove that defendant proximately caused the loss.
Pfizer has tendered extensive documentation of what it portrays as a scientific consensus refuting any causal link between Celebrex and dermatomyositis, the condition which plaintiff alleges caused his loss of consortium. A defense-designated expert witness, Dr. Gary Williams, asserts that no scientific evidence exists to suggest that Celebrex causes dermatomyositis or Chronic Fatigue Syndrome. ECF No. 92-1 at 5-8. Additionally, several of Ms. Viramontes' own treating physicians have testified against any causal link between Ms. Viramontes' Celebrex ingestion and her injuries. Hebard Depo. at 83:21-84:7; Huang Depo. at 20:16-21:23; ECF No. 95-2 at 79, 86-87; Daughters Depo. at 39:16-23, 56:19-57:4. Accordingly, defendant has met its initial responsibility of establishing the absence of evidence for causation, an essential element of plaintiff's case.
As the non-moving party, plaintiff must therefore identify specific evidence to show that a triable dispute exists regarding causation. Fed. R. Civ. P. 56(c). Plaintiff relies on two statements made by Dr. Ira Fishman, M.D., a workers' compensation physician. First, plaintiff provides Dr. Fishman's 2012 report which states that although instances of drug-induced dermatomyositis are rare, there was a "reasonable medical probability" that Ms. Viramontes' dermatomyositis was linked to her Celebrex consumption. ECF No. 13 at Ex. B (2012 Fishman Report). Plaintiff also provides Dr. Fishman's deposition from Ms. Viramontes' workers' compensation claim. ECF No. 99 at Ex. A (Deposition Transcript of Ira Fishman, M.D., January 29, 2016 ("2016 Fishman Depo."). Dr. Fishman's deposition testimony is consistent with his original report: he diagnosed Ms. Viramontes with dermatomyositis and Chronic Fatigue Syndrome, and he believed there was sufficient evidence to infer a connection between these diagnoses and Celebrex.
Defendant argues that both Fishman documents are inadmissible.
ECF No. 13 at Ex. B, 2012 Fishman Report at 21.
Even if the court were to assume plaintiff's evidence was admissible, plaintiff cannot survive summary judgment. Dr. Fishman's statements do not demonstrate the existence of a material factual dispute in light of plaintiff's burden of proof.
ECF No. 99, Fishman 2016 Depo. at 17:4-16. Regarding Chronic Fatigue Syndrome, Dr. Fishman's latest report concludes:
ECF No. 13 at Ex. D (QME Consultation Report, Ira Fishman, July 22, 2013 ("2013 Fishman Report")) at 7.
Neither Dr. Fishman's report nor his deposition testimony can satisfy plaintiff's burden of proof regarding causation. His testimony describes a correlation between Celebrex use and dermatomyositis, but not causation. In his report, Dr. Fishman opines that Ms. Viramontes' chronic ongoing fatigue is most likely related to dermatomyositis. He does not state that there is a reasonable medical probability that Celebrex caused dermatomyositis or Chronic Fatigue Syndrome.
Moreover, Dr. Fishman's expertise is useless to plaintiff because his testimony cannot be produced at trial. Though plaintiff indicated at the motion hearing that Dr. Fishman would appear as a trial witness, he failed to list any witnesses other than Ms. Viramontes in his initial disclosures or provide any expert designations by the February 14, 2018 deadline. ECF No. 81; ECF No. 91. "If a party fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless." Fed. R. Civ. P. 37(c)(1). The burden of proving whether failure to identify a witness was substantially justified or harmless is on the party facing sanctions.
For all these reasons, no reasonable jury could find in plaintiff's favor on the issue of causation. "If the nonmoving party cannot muster sufficient evidence to make out its claim, a trial would be useless and the moving party is entitled to summary judgment as a matter of law."
The undersigned recommends summary judgment for a third, additional reason: plaintiff has not tendered evidence that could prove the essential element of his claim that a tortious injury occurred to his spouse.
In California, a failure to warn claim in the context of prescription drugs "require[s] a plaintiff to prove only that the defendant did not adequately warn of a particular risk that was known or knowable in light of the generally recognized and prevailing best scientific and medical knowledge available at the time of manufacture and distribution."
Plaintiff cannot prove that the Celebrex label was inadequate. During his deposition, plaintiff acknowledged he had no evidence that defendant failed to adequately warn Dr. Tung, Ms. Viramontes' prescribing physician, and instead claims defendant failed to provide a warning to Ms. Viramontes. E.V. 2017 Depo. at 149:3-9 (admitting that he "can't prove anything" with respect to whether Pfizer failed to warn Dr. Tung). Additionally, in his opposition to defendant's Motion for Summary Judgment, plaintiff states:
ECF No. 98 at ¶ 7. Plaintiff argues that the mere absence of a warning that Celebrex may cause dermatomyositis or Chronic Fatigue Syndrome is itself sufficient to support a failure to warn claim. However, without providing evidence that Celebrex causes these conditions, giving rise to a duty to warn plaintiff's wife or her doctor of these specific side effects, plaintiff cannot prove that defendant failed to adequately warn. Without evidence to establish the underlying "tortious injury," plaintiff's loss of consortium claim may not proceed to trial.
For all the reasons set forth above, it is RECOMMENDED that defendant's motion for summary judgment (ECF No. 95) be GRANTED.
These findings and recommendations are submitted to the United States District Judge assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty-one (21) days after being served with these findings and recommendations, any party may file written objections with the court. Such document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Local Rule 304(b). Failure to file objections within the specified time may waive the right to appeal the District Court's order.
