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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 Page 2 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 burden.*fn7

  The Tedesco Plaintiffs

  Sue Tedesco allegedly died of liver failure in March 2000 after having taken Rezulin. Page 3 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 dismissed.

  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.

  SO ...

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