the other documentary evidence provided for in the earlier Order. (Doc. 20).
Nonetheless, on that August 1 deadline, plaintiff again telephoned chambers
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."
(Doc. 24). Furthermore, defendants were directed to schedule the discovery depositions of plaintiff's treating physicians forthwith. (Doc. 24).
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
has been stayed pending the submission and disposition of the motion now before the court. (Doc. 26).
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.
"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.
Nonetheless, plaintiff has failed to carry her burden of proving an essential element of all of her claims,
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
is not acting as a "legal" representative of this Court, but as "Pro Se". [sic] Plaintiff asks the Court to recognize what that means. Plaintiff is not in the capacity to "legally" produce. Plaintiff has, however, "Pro Se" produced sufficient evidence to allow the Court to rule for a settlement judgement. Plaintiff has presented adequate proof of causal relationship between the defendants [sic] hepatitis B immunizations and the plaintiffs [sic] subsequent injuries and losses from the mentioned immunizations . . . .