The opinion of the court was delivered by: LEWIS KAPLAN, District Judge
(Plaintiffs' Motion to Reconsider PTO 305, Motion to Dismiss of
Oscar Cortes, M.D. and Plaintiffs' Motion for Leave to Amend the
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 §
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.