The opinion of the court was delivered by: Jed S. Rakoff, U.S.D.J.
PERTAINS TO No. 05 Civ. 3021
Defendants' motion for summary judgment dismissing the complaint for failure to show causation is denied; their motion to exclude the opinions of Wesley Dennis, M.D. is granted in part and denied in part; and their motion for summary judgment dismissing the complaint as to individual defendant Michnal for lack of personal jurisdiction is denied.
The relevant facts, undisputed or, where disputed, taken most favorably to plaintiff, are as follows:
Plaintiff Sharon Stafford, a Texas resident, became disoriented at work on December 11, 2002, at age 54. Her supervisor told a co-worker, Sue Schlosser, to take plaintiff to the emergency room and to bring the doctors a bottle of ThermoSlim, defendants' ephedra product, which Schlosser and other co-workers had seen in plaintiff's possession at work. Deposition of Sue Schlosser dated August 4, 2006 ("Schlosser Dep.") at 15-18. In the emergency room, plaintiff's blood pressure was measured as 240/94. Plaintiff's Rule 56.1 Statement ("Pl. 56.1"), Ex. O ("Emergency Department Record"). The hospital records, as read by Dr. Dennis into the transcript of his deposition, include the following impressions of the consulting neurologist: "an unusual stroke or encephalopathy due to elevated blood pressure"; "There's a question of diet treatment induced hypertension, vasospasm." Deposition of Wesley D. Dennis, M.D dated January 9, 2006 ("Dennis Dep.") at 88 and 92. The hospital performed its standard toxicological tests, all of which proved negative, Defendants' Rule 56.1 Statement ("Def. 56.1"), Ex. L ("All Saints Records") at 9, but the tests did not screen for ephedrine. Dennis Dep. at 126.
In 1994, plaintiff's family physician, Edmond Evans D.O., measured her systolic blood pressure in the 160-170 range, Deposition of Edmond C. Evans dated February 8, 2006 ("Evans Dep.") at 15, and had prescribed medication to lower it, which Ms. Stafford apparently was no longer taking at the time of her 2002 stroke. See Emergency Department Record. Also in 1994, Dr. Evans diagnosed plaintiff as diabetic, Evans Dep. at 14, and by 2003 her diabetes had caused "atherosclerotic changes," Dennis Dep. at 15. In 2000, Dr. Evans recorded plaintiff's weight at 234 lbs. and admonished her to lose weight, as he had done on previous occasions. Evans Dep. at 25. Plaintiff had suffered a mild previous stroke in 1997, Dennis Dep. at 9-10, without lasting symptoms or significant absence from work. Id. After her stroke in 2002, however, Dennis determined Stafford was unable to return to work. Dennis Dep. 105-06.
Plaintiff complains of impaired memory, Deposition of Sharon Stafford ("Stafford Dep.") at 21-22, and does not recall details of her purchase and use of ThermoSlim. Id. at 25. A canceled check, however, shows that she paid defendant Universal Nutrition Corp. ("UNC") $127.95 for an order of ThermoSlim on 11/6/02. Pl. 56.1 Ex. R. There is no evidence of the dose she was taking at the time of her stroke. Plaintiff did testify that she had heard about ThermoSlim "through a TV ad," Stafford Dep. at 15-16, but remembers nothing about the ad except that it said ThermoSlim "would help you lose weight." Id. at 56. The hospital records note that plaintiff had lost 25 lbs. in the month preceding her stroke. Dennis Dep. at 86, 152.
At all relevant times, defendant UNC, a Nevada corporation having its principal office in Florida, was marketing and selling ThermoSlim in Texas and elsewhere. Def. 56.1 ¶¶ 5, 70. UNC paid for an "infomercial" promoting ThermoSlim to be televised in the Dallas/Forth Worth market, Declaration of Robert J. Michnal dated September 20, 2006 ("Michnal Decl.") ¶ 23. Plaintiff alleges and defendant has not disputed that this infomercial was televised in plaintiff's viewing area at times consistent with plaintiff's order of ThermoSlim from UNC. Plaintiff's Response and Brief to Defendants' Motion for Summary Judgment at 3. UNC had no employees; defendant Robert Michnal, a resident of Florida, was its sole shareholder, sole director, president, and treasurer; his wife, Roma Michnal, was its secretary. Michnal Decl. ¶¶ 2, 9.
Defendant MTM Marketing and Consulting Inc. ("MTM") was a Georgia corporation having its principal office in Norcross, Georgia. Def. 56.1 ¶ 86. In performance of a contract with UNC, MTM warehoused a stock of ThermoSlim and packaged and shipped ThermoSlim to customers who had ordered it from UNC by mail or over the Internet. Michnal Decl. ¶ 16. Michnal was MTM's sole shareholder, sole director, president, and treasurer; his wife was MTM's secretary. Id. ¶ 5. MTM employed a bookkeeper, purchasing manager, receptionist, warehouse manager, and temporary employees. Id. ¶ 4.
The witness whose opinions are sought to be excluded, Wesley Dennis, M.D., was plaintiff's treating neurologist from April 2003 until March 2005, when the group practice where he was working dropped plaintiff as a patient because of a problem with her insurance. Dennis Dep. at 12, 37-40. Defendants noticed his deposition as a fact witness in January 2006 and paid him $300/hour for his time in so testifying. Id. at 130. He has received no other payment from plaintiff. See transcript of oral argument 3/1/07 at 37-38. Dennis was deposed as a fact witness and was never contacted by plaintiff's counsel about serving as an expert in the case. Dennis Dep. at 6, 129-30. During his deposition, however, counsel for one of the defendants showed him medical articles and elicited his opinions, as if examining an expert witness. See id. at 66-67. In response, plaintiff's counsel showed Dr. Dennis additional documents (including plaintiff's hospital records, which he had not seen before) and elicited Dr. Dennis's opinions, including one on general causation:
Q: And what's your understanding of what ThermoSlim is?
A: ThermoSlim contains an ephedrine based product.
Q: Is that important to you as a ...