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SAARI v. MERCK & CO.

March 11, 1997

JUDITH SAARI, Plaintiff,
v.
MERCK & CO., INC., SMITHKLINE BEECHAM BIOLOGICALS, and SMITHKLINE BEECHAM PHARMACEUTICALS, Defendants.



The opinion of the court was delivered by: SMITH

 By Order dated November 1, 1996, this matter was referred to the undersigned upon consent of the parties by the Honorable Thomas J. McAvoy, Chief United States District Judge, for all further proceedings and the entry of a final judgment in accordance with 28 U.S.C. ยง 636(c) and Fed. R. Civ. P. 73.

 BACKGROUND

 In May 1995, plaintiff, through counsel, commenced actions in New York State Supreme Court alleging that she developed *fn1" arthritis, fatigue, and alopecia (hair loss) *fn2" as a result of defendants' hepatitis B vaccines which she received on July 29 and August 28, 1992. Defendants timely removed those actions to this court, and the two cases were consolidated by Order dated November 3, 1995. (Doc. 15).

 Previously, on August 7, 1995, this court granted plaintiff's attorney's motion to withdraw as counsel for plaintiff and directed plaintiff to advise the court as to her intentions regarding retaining new counsel. (Doc. 7). In a subsequent Order, plaintiff was directed to retain new counsel in advance of the scheduled Rule 16 conference, but in the event she was unable to do so, she was nevertheless to attend the conference pro se. (Doc. 9). Plaintiff subsequently requested, and was granted (Doc. 13), an adjournment of that conference because the law firm she had contacted needed additional time to prepare and to obtain additional medical information and an expert medical witness. (Pl.'s letter of Sept. 21, 1995). When that conference was finally held on November 1, 1996, however, plaintiff appeared pro se. (Doc. 14). At that time, the court urged plaintiff to retain counsel and advised her that if she continued pro se, she would be required to comply with the rules of practice and procedure governing federal litigation. (See Doc. 20).

 Following that conference, a Uniform Pretrial Scheduling Order was filed in which, inter alia, plaintiff was directed (1) to identify any and all experts who are retained or specially employed to provide expert testimony in the case, and (2) unless waived to serve on the defendants the expert's written report pursuant to Fed. R. Civ. P. 26(a)(2)(B) no later than 90 days prior to the discovery deadline of July 31, 1996. (Doc. No. 16). While that Order did not require the production of such reports by treating physicians, it did provide that "if a treating physician is expected to be called as a witness, he or she must be identified at least 90 days prior to the close of discovery. " (Doc. 16) (emphasis in original).

 Despite that clear Order, plaintiff did not provide any expert reports prior to the May 1, 1996, deadline. Consequently, following a discovery conference on June 6, 1996, this court issued an Order which, inter alia, directed that plaintiff would be "precluded from calling any experts other than those treating physicians whose names she has disclosed in response to interrogatories." (Doc. 19). However, in an effort to give plaintiff every opportunity to provide evidentiary support for her claim (see Doc. 20), the court further directed in that Order that

 
as to each of those treating physicians whom she intends to call, plaintiff must submit a letter signed by each such treating physician no later than July 1, 1996, stating the physician's willingness to appear as a witness both at trial and at a pretrial deposition, if necessary, as well as a synopsis of the physician's intended testimony specifying whether the physician's opinion is being given solely as a treating physician or as a potential expert on the issue of causation of plaintiff's alleged injury by the hepatitis-B vaccine. If plaintiff fails to ensure that such a signed letter is provided by July 1, 1996, she shall be precluded from calling said physician as a witness.3

 (Doc. 19) (emphasis added). That Order further provided, inter alia, that

 
as to any report, declaration or other information provided by non-treating physicians, plaintiff may submit such information to counsel for defendants by July 1, 1996, together with a letter from each person stating his or her knowledge of plaintiff's claim. Such information does not appear at this time to be admissible in any respect at a trial of this matter but is being permitted inasmuch as plaintiff is acting pro se. Plaintiff is advised, however, that this information is highly unlikely to play any role in this action.

 (Doc. 19) (emphasis added).

 Plaintiff made a telephonic request for an additional sixty days in which to provide the physician statements and other written documentation, claiming a recent move and the condition of her health as justification. (See Doc. 20). In an Order dated June 27, 1996, the court noted that despite the passage of more than one year, little, if any, progress appeared to have been made by plaintiff in prosecuting her claim. (Doc. 20). The court further stated that it had

 
extended every consideration to plaintiff as required for one acting pro se. However, it is essential that this action proceed expeditiously both for the sake of the defendants and to ensure that the court's business is handled in expedient fashion. Plaintiff has not specified any efforts expended to date to comply with this court's order of June 4, 1996. Moreover, neither her relocation nor her claimed medical condition should have prevented her from communicating by mail or telephone with her treating physicians and those persons described in paragraph 2 of that order.

 (Doc. 20). However, in deference to plaintiff's pro se status, by that Order the court extended plaintiff's time to August 1, 1996, to produce the treating physician letters and the other documentary evidence provided for in the earlier Order. (Doc. 20).

 Nonetheless, on that August 1 deadline, plaintiff again telephoned chambers *fn4" essentially asking for additional time to submit the required letters. In view of the previous extension and the lateness of this extension request, she was given only to the next morning to send them to chambers by facsimile. The next day, just three letters were faxed to the court, along with some supporting medical documentation. Thereafter, on August 5, 1996, the court received a packet of documents from plaintiff which included copies of the same items as well as unsigned letters from two additional doctors (Kremer and Greenstein), more supporting documentation, and a copy of discovery responses apparently sent to defense counsel in December 1995.

 Inasmuch as defense counsel did not timely receive the doctors' letters, a telephone conference was conducted on August 12, 1996, following which an Order was issued by this court which directed that "plaintiff shall be precluded from calling Doctors Greenstein and Kremer. The letters plaintiff submitted on their behalf are unsigned and thus do not comply with the court's previous Order." (Doc. 24) (footnote omitted). The Order further provided "that given the liberality that is to be afforded to pro se litigants, the court will consider Dr. James Yovanoff to be a 'treating physician,' and thus plaintiff will be permitted to call him as a witness, and defendants may very well wish to depose him as well as the other two treating doctors." *fn5" (Doc. 24). Furthermore, defendants were directed to schedule the discovery depositions of plaintiff's treating physicians forthwith. (Doc. 24). *fn6" Those depositions were conducted, full transcripts of which, as well as that of plaintiff's deposition, were filed by defendants pursuant to the court's Order of February 20, 1997. (Doc. 39). Upon defendants' request, discovery *fn7" has been stayed pending the submission and disposition of the motion now before the court. (Doc. 26).

 DISCUSSION

 Presently before the court is defendants' motion for summary judgment pursuant to Fed. R. Civ. P. 56 on the ground that plaintiff has not produced legally sufficient evidence that her alleged injuries were caused by defendants' hepatitis B vaccines. (Docs. 29-35). The pro se plaintiff filed opposition to that motion in which she requests a "judgement [sic] for settlement" in the amount of $ 52,000 per year for thirty years (her alleged life expectancy) from each of the defendants. (Doc. 36).

 With leave of court, which is required by Local Rule 7.1(b)(2), defendants filed a brief reply memorandum. (Doc. 37). Thereafter, without leave of court, plaintiff submitted a letter in response to defendants' reply, which precipitated yet another round of letters from defendants (Doc. 38) and plaintiff. *fn8"

 "Properly employed, summary judgment is a useful device for unmasking frivolous claims and putting a swift end to meritless litigation." Quinn v. Syracuse Model Neighborhood Corp., 613 F.2d 438, 445 (2d Cir. 1980). The standard for granting a motion for summary judgment is very well-established. Leiching v. Consolidated Rail Corp., 901 F. Supp. 95, 97 (N.D.N.Y. 1995). Such a motion shall be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986).

 Significantly, "the plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). "Where the nonmoving party fails to make such a showing, the moving party is 'entitled to a judgment as a matter of law' . . . ." Id. at 322-23 (quoting Anderson, 477 U.S. at 250). Moreover, "a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Id. at 323.

 Furthermore, "a party may not 'rely on mere speculation or conjecture as to the true nature of the facts to overcome a motion for summary judgment.'" Fletcher v. Atex, Inc., 68 F.3d 1451, 1456 (2d Cir. 1995) (citations omitted); Montessi v. American Airlines, Inc., 935 F. Supp. 482, 485 (S.D.N.Y. 1996). See Burke v. Warren County Sheriff's Dep't, 890 F. Supp. 133, 137 (N.D.N.Y. 1995) ("To survive the motion for summary judgment the nonmovant must do more than present evidence that is merely colorable, conclusory, or speculative . . . ."). The nonmoving party must show more than "some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986). "However, the court must resolve all ambiguities and draw all reasonable inferences in favor of the nonmoving party, and it may not properly grant summary judgment where the issue turns on the credibility of witnesses." Leiching, 901 F. Supp. at 97 (citing Celotex, 477 U.S. at 322-23; Azrielli v. Cohen Law Offices, 21 F.3d 512, 517 (2d Cir. 1994)).

 After a very careful review of all of the papers submitted, including the more than 600 pages of deposition transcripts, defendants' motion shall be granted. With the exception of the production of defendants' expert reports, discovery in this case is closed. *fn9" Nonetheless, plaintiff has failed to carry her burden of proving an essential element of all of her claims, *fn10" namely that defendants' vaccines caused her alleged injuries. As shown below, plaintiff has submitted evidence that is at most "colorable, conclusory, or speculative," which is inadequate to defeat a summary judgment motion. Burke, 890 F. Supp. at 137. See Montessi, 935 F. Supp. at 486 ("The bald statement . . . that [plaintiff] is suffering . . . ailments 'as a result of the . . . incidents' complained of--is the epitome of a legal conclusion and thus insufficient to establish a genuine issue of material fact for trial.").

 The court notes that in her opposition papers (Doc. 36) plaintiff contends that given her pro se status, she cannot "'legally' evidence a case." She thus objects to defendants' assertion that she "has not produced legally sufficient evidence that her alleged injuries were caused by the defendants [sic] hepatitis B vaccines". [sic]. (Doc. 36 at 1). Plaintiff asserts that she

 
Plaintiff asks the Court to rule that Plaintiff did in fact show a causal relationship as "Pro Se", ...

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