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IN RE REZULIN PRODUCTS LIABILITY LITIGATION

United States District Court, S.D. New York


November 22, 2004.

In re: REZULIN PRODUCTS LIABILITY LITIGATION (MDL No. 1348). This Document Relates to: 03 Civ. 9844.

The opinion of the court was delivered by: LEWIS KAPLAN, District Judge

PRETRIAL ORDER NO. 328

(Plaintiffs' Motion to Reconsider PTO 305, Motion to Dismiss of Oscar Cortes, M.D. and Plaintiffs' Motion for Leave to Amend the Complaint)
In PTO 305, the Court denied the plaintiffs' motion to remand in 03 Civ. 9844 (Garza), overruling the plaintiffs' objections to the amended report and recommendation ("R&R") of Magistrate Judge Gorenstein dated July 9, 2004. The plaintiffs subsequently moved to reconsider the denial of the motion to remand. In addition, defendant Oscar Cortes, M.D. has moved to be dismissed from the action. The plaintiffs oppose that motion and move in the alternative for leave to amend their complaint.

  The plaintiffs argue that the denial of their motion to remand was inconsistent with an earlier opinion of this Court, In re Rezulin Products Liability Litigation, 168 F. Supp. 2d 136 (S.D.N.Y. 2001) ("Rezulin II"). That decision granted motions to remand Brown v. Warner-Lambert Co. and Soto v. Warner Lambert Co., Rezulin cases from Texas that contained allegations against physicians quite similar to the allegations in Garza. Id. at 148-50.

  There is no inconsistency. At the time the Court rendered Rezulin II, the defendants in Brown and Soto had not challenged the sufficiency of the claims against the physicians. The Court was faced only with, and therefore ruled only on, the argument that remand should be denied because the plaintiffs had failed to file the expert report required by Tex. Civ. Code Ann. Art. 4590i. The Court stated: "As the physicians in Brown and Soto have not moved under Section 1301(e), this Court finds that there is a possibility that plaintiffs could recover against the physicians in those cases. The motions to remand those cases will be granted." Id. at 150 (emphasis added).

  Plaintiffs' claim that defendants are judicially estopped attacking the sufficiency of the complaint in this action as against the physician defendant by their failure to mount a similar attack in Brown and Soto is frivolous. The doctrine of judicial estoppel does not apply where, as here, no position, or a position entirely consistent with the present one, was taken in the earlier proceeding. See 18B CHARLES ALAN WRIGHT ET AL., FEDERAL PRACTICE AND PROCEDURE: JURISDICTION ยง 4477, at 592-93 ("Arguments that inconsistent positions have been taken . . . fail [when] no earlier position was taken at all.").

  The plaintiffs seek support also from Barragan v. Warner-Lambert Co., 216 F. Supp. 2d 627 (W.D. Tex. 2002), in which a different district court granted a motion to remand a complaint setting forth allegations similar to those in Garza. Without considering whether the motion in Barragan was rightly decided, the Court notes that that case presented different circumstances. The plaintiff there had submitted, in support of his motion to remand, letters from the drug manufacturers to physicians warning of injuries potentially caused by Rezulin, and the Court's decision expressly took those letters into account. See 216 F. Supp. 2d at 632. In this case, by contrast, as explained more fully in the R&R, the plaintiffs offered only the most conclusory allegations that Dr. Cortes knew or should have known of the alleged risks of Rezulin.*fn1

  In opposing the motion to dismiss of Dr. Cortes, the plaintiffs move alternatively for leave to amend their complaint. The plaintiffs have submitted a proposed complaint that does far more to give Dr. Cortes notice of the claims against him than did the conclusory allegations of the earlier complaint. In the exercise of discretion, the Court will grant leave to amend.

  In conclusion, the motion to dismiss of Oscar Cortes, M.D. [00 Civ. 2843, DI 2377] is granted, the plaintiffs' motion for leave to amend the complaint[00 Civ. 2843, DI 2518] is granted, and the motion to reconsider the order denying the motion to remand [00 Civ. 2843, DI 2376] is denied.

  SO ORDERED.


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