United States District Court, Southern District of New York
April 16, 2003
IN RE: REZULIN PRODUCTS LIABILITY LITIGATION
The opinion of the court was delivered by: Lewis A. Kaplan, District Judge.
PRETRIAL ORDER NO. 139
(Motion for Summary Judgment Dismissing Claims of Yolanda Kelly)
Defendants move for summary judgment dismissing the claims of plaintiff Yolanda Kelly. Ms. Kelly has not opposed the motion among the consequences of which is her admission of all of the properly supported allegations of defendants' Rule 56.1 Statement.
Viewing the record in the light most favorable to the non-moving party, the record establishes no more than that Ms. Kelly took Rezulin in Louisiana, has sustained no discernable injury, and seeks recovery solely for her alleged fear of future health problems that she apprehends might ensure from her use of the drug.
The motion is granted on the alternative grounds that the claim is barred by the relevant statute of limitations; that the complaint fails to state the only conceivable claim for relief, which would be a claim under the Louisiana Product Liability Act, La.R.S. 9:2800.52; and that even had she done so, the fear of which she complains is not "damage" within the meaning of the relevant Louisiana statute, La. Civ. C. Art. 2315. Grenier v. Med. Eng'g Corp., 99 F. Supp.2d 759, 763 (W.D.La. 2000), aff'd, 243 F.3d 200 (5th Cir. 2001); Neson v. Tri Hawk Int'l, 985 F.2d 208, 211 (5th Cir. 1993).
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