United States District Court, S.D. New York
February 2, 2005.
In re: REZULIN PRODUCTS LIABILITY LITIGATION (MDL No. 1348). This Document Relates to: 00 Civ. 9168.
The opinion of the court was delivered by: LEWIS KAPLAN, District Judge
PRETRIAL ORDER NO. 348 (Brown Motions for Summary Judgment)
Now before the Court are motions by the manufacturer defendants
for summary judgment dismissing the complaint insofar as it is
brought by plaintiff Jacqueline Makowski (00 Civ. 2843, docket
item 2777) and by plaintiff Joan Smerlick (00 Civ. 2843, docket
item 2779) and for an order dismissing the complaint of
plaintiffs Mary Sue Brown, Christina Couch, Nancy Engel, Tina
Grieze, Beth Hyde, Kathleen Stegemiller, Charles Tedesco, Jr.,
Charles Tedesco, Sr., Matthew Tedesco, and Patricia Wright (the
"Tedesco Plaintiffs") (00 Civ. 2843, docket item 2781) pursuant
to Rules 17(b) and 56 of the Federal Rules of Civil Procedure.
Although plaintiffs have responded to the motions, none has
submitted a Rule 56.1 Statement or complied with PTO 94.
Accordingly, all of the properly supported factual assertions in
defendants' Rule 56.1 Statements are deemed admitted.
The Makowski and Smerlick Motions
Plaintiff Makowski's late husband died of metastatic
hepatocellular carcinoma. Plaintiff Smerlick complains of cardiac
injury. Defendants' motions placed in issue the question whether
Rezulin is capable of causing, and caused, those conditions.
Plaintiffs have responded to both motions by contending that
defendants were obliged "to produce evidence that negates an
essential element of the non-moving party's claim" or "point to
evidentiary materials already on file that demonstrate that the
non-moving party will be unable to carry its burden of persuasion
at trial." Pl. Mem. 2-3. They go on to argue that plaintiffs have
"no obligation to offer evidence supporting its [sic] own case
unless the moving party meets its initial burden of demonstrating
the absence of a genuine issue of material fact." Id. 3.
Plaintiffs are wrong as a matter of law.
Under Rule 56(c) of the Federal Rules of Civil Procedure,
summary judgment is appropriate if there is no genuine issue of
material fact and the moving party is entitled to judgment
as a matter of law.*fn1 While the burden rests on the moving
party to demonstrate the absence of a genuine issue of material
fact,*fn2 and the Court must view the facts in the light
most favorable to the nonmoving party,*fn3 a defendant may
prevail if it can demonstrate that the plaintiff cannot establish
an essential element of its claim.*fn4 Where, as here, the
burden of proof at trial lies with the nonmoving party, it
ordinarily is sufficient for the moving party to point to a lack
of evidence on an issue sufficient to go to the trier of fact. In
that event, the nonmoving party must come forward with admissible
evidence*fn5 sufficient to raise a genuine issue for trial
in order to avoid summary judgment.*fn6 Accordingly, the
burden shifted to these plaintiffs to come forward with
admissible evidence sufficient to raise a genuine issue of
material fact as to both general and specific causation. E.g.,
In re Rezulin Prods. Liab. Litig., 2004 WL 2884327 (S.D.N.Y.
Dec. 10, 2004). Neither plaintiff has sustained that
The Tedesco Plaintiffs
Sue Tedesco allegedly died of liver failure in March 2000 after
having taken Rezulin.
The Tedesco plaintiffs are some of all of her survivors. It is
undisputed that, under the applicable state law, only a duly
appointed personal representative would have standing to pursue
any of the claims asserted here.
The complaint alleged that plaintiff Beth Hyde is the personal
representative and executor [sic] of the estate of Sue Tedesco.
Cpt. ¶ 10. Deposition testimony and other evidence offered by
defendants tending to demonstrate that this allegation was false.
Defendants' Rule 56.1 Statement asserted that no personal
representative had been appointed. Plaintiffs' failure to respond
to that statement resulted in its admission.
Plaintiffs now have come forward a copy of an order of the
Dearborn Circuit Court of the State of Indiana, dated January 27,
2005, which directs the issuance of letters testamentary with
respect to the estate of Sue Tedesco to Charles Tedesco. There is
no evidence that letters actually have been issued. Plaintiffs
also have moved to substitute Charles Tedesco, Sr., in his
alleged capacity as personal representative of the estate of Sue
Tedesco, as a plaintiff.
The Court will deal with the motion to substitute in due
course, after defendants have had an opportunity to respond to
it. For present purposes it suffices to say that it is undisputed
that none of the Tedesco Plaintiffs other than Charles Tedesco,
Sr., has standing to sue. Charles Tedesco, Sr., as the pleadings
currently stand, sues only in his individual capacity. The
complaint on behalf of these plaintiffs therefore must be
Accordingly, each of the motions (00 Civ. 2843, docket items
2777, 2779 and 2781) is granted and the case dismissed insofar as
it is brought on behalf of the plaintiffs named therein.
Plaintiffs' motion to strike the declaration of Pierre Frank
Saldinger, M.D., is denied as moot.