United States District Court, N.D. New York
Williams Cayuga Correctional Facility Plaintiff pro se
Goldberg, Segalla Law Firm MICHAEL D. SHALHOUB, ESQ. JONATHAN
M. BERNSTEIN, ESQ. MATTHEW S. LERNER, ESQ. Attorneys for
MEMORANDUM-DECISION & ORDER
CHRISTIAN F. HUMMEL U.S. MAGISTRATE JUDGE.
December 28, 2015, plaintiff pro se Cedric Williams
commenced this action against defendant Coca Cola Co.
(“Coca Cola”) pursuant to 28 U.S.C.§1332(a),
alleging various state law claims arising from injuries he
alleges he sustained as a result of drinking diet Coca- Cola.
Dkt. No. 1 (“Compl.”). Presently before the Court
is defendant's Motion for Summary Judgment. Dkt. No. 74.
Plaintiff filed a response to in opposition. Dkt. No. 74.
Defendant filed a reply. Dkt. No. . 85. For the following
reasons defendant's motion for summary judgment is
facts are viewed in the light most favorable to plaintiff, as
the nonmoving party. Plaintiff has been confined with the New
York State Department of Corrections and Community
Supervision (“DOCCS”) since November 16, 2010.
Compl. at 2. At all times herein relevant, he was housed at
the Clinton Correctional Facility (“Clinton
C.F.”). Id. In April 2015, Williams received
“multiple cans” of diet Coca Cola. Id.
After consuming an unspecified amount of diet Coca Cola,
plaintiff experienced migraine headaches and “periodic
moments of impaired vision.” Id. Plaintiff
contends that the aspartame contained in diet Coca Cola he
consumed was caused his health problems. See Compl
at 2-3. Further, as a result of drinking diet Coca Cola, he
“ suffered personal injuries, migraines, vision
problems, anxiety caused by his fear of developing cancer,
emotional distress, and consequently, insomnia”.
Id. at 3. Plaintiff contends that “it's
believed plaintiff's emotional injuries are
permanent.” Id. Plaintiff's complaint
contains claims against defendant for negligence, gross
negligence, negligent infliction of emotional distress,
fraud, and negligent misrepresentation. Id. at 3-7.
Plaintiff demands $2, 000, 000 “for punitive
damages”; $3, 000, 000 “for future emotional
suffering as a result of continuous fear of developing
cancer”; for a Court order directing defendant
“to identify and label all decomposition products of
food additive (APM), along with amounts, on all of its diet
Coca-Cola soft drink labels and/or discontinue use of (APM)
unless defendant meets its burdens under Section 09 of the
Federal Food, Drug and Cosmetic Act, 21 U.S.C. 348 to
demonstrate that (APM) is safe and functional for use in its
diet soft drinks”; a Court order directing defendant
“to make an immediate public declaration regarding the
inherent health risks posed by (APM) decomposition products
contained in its diet Coca-Cola soft drinks on all social
media platforms . . . as well as major news networks CNN,
CNBC and HLN.” Id. at 7. Plaintiff also
demands costs. Id.
March 28, 2016, defendant filed a Motion to Dismiss the
Complaint, to which plaintiff opposed. Dkt. No. 16; Dkt. No.
20. By Decision and Order filed March 31, 2017, the Court
granted defendant's motion to dismiss the claims for
fraud, negligent misrepresentation, and negligent infliction
of emotional harm. Dkt. No. 29 at 11. The Court denied
defendant's motion as to plaintiff's claims for
negligence, gross negligence, and his demands of injunctive
relief and punitive damages. Id. Plaintiff was
granted leave to amend his Complaint. Id. Plaintiff
did not file an amended complaint.
5, 2017, defendant served an answer to the complaint. Dkt.
No. 30. Defendant served an amended answer on May 15, 2017.
Dkt. No. 36. On June 2, 2017, the Court conducted a Rule 16
conference. Dkt. Entry dated June 2, 2017. The Court issued a
Uniform Pretrial Scheduling Order which provides, among other
things, that all discovery be completed by December 29, 2017.
Dkt. No. 41 at 1. The Order further directs that ninety days
prior to the close of discovery, plaintiff shall identify any
experts that may testify at trial and serve any experts
written report on defendant pursuant to Federal Rule of Civil
Procedure (“Fed. R. Civ. P.”) 26(a)(2)(B).
Id. at 2.
the course of June 2, 2017 conference, the Court had a
lengthy conversation with plaintiff regarding his need to
retain an expert or experts, as well as his responsibility to
provide expert disclosure. Text Min. Entry dated June 2,
2017; Dkt. No. 91. The Court advised plaintiff that in order
to proceed to trial, plaintiff must retain an expert who is
qualified to testify in support of his claim that aspartame
causes migraine headaches and may cause cancer. Dkt. No. 91
at 15-16. The Court told Plaintiff that “. . . it is
your burden to come forward with an expert who is going to
say that aspartame, in fact, can cause cancer and can, in
fact, cause migraine headaches.” Id. at 16.
Plaintiff advised the Court that he understood his obligation
to retain such an expert. Id. at 16-17.
June 2, 2017 conference, the Court also discussed with
Plaintiff his obligation to provide expert disclosure. Dkt.
No. 91 at 20-21. Plaintiff was advised that he was required
to file expert disclosure ninety days prior to the close of
discovery. Id. at 21. As the deadline for the
completion of discovery was December 29, 2017, plaintiff was
required to file his expert disclosure by September 29, 2017.
Plaintiff told the Court he understood his obligation and
would meet those requirements. Id.
November 3, 2017, the Court conducted a conference to address
various discovery issues with plaintiff and defense counsel.
Dkt. Entry dated Nov. 3, 2017. The Court issued a Text Order
which, among other things, extended the deadline for the
completion of discovery until March 2, 2018. Dkt. No. 69. The
Text Order further provided that the Uniform Pretrial
Scheduling Order, Dkt. No. 41, as amended remained in full
force and effect. Id. As such, plaintiff's
expert disclosure was required to be served on defendant
ninety days before the March 2, 2018 discovery deadline. Dkt.
November 13, 2017, defendant filed a motion to compel
responses to certain outstanding discovery demands, Dkt. No.
70. Plaintiff filed a response. Dkt. No. 71. On January 10,
2018, the Court conducted a conference to address
defendant's motion to compel. Dkt. No. 70. During the
conference, the Court again addressed plaintiff's burden
of proof and his obligation to provide expert disclosure.
Dkt. No. 84. Defense counsel advised the Court that plaintiff
had failed to serve expert disclosure by December 4, 2017 as
required by the Uniform Pretrial Scheduling Order. Dkt. No.
84 at 12. The Court advised plaintiff that it was his burden
of proof to show that defendant was negligent in the use of
aspartame in diet Coca Cola and that he was injured as a
result of their use of aspartame. Id. at 13. The
Court told plaintiff: “[A]s I indicated to you, you
need to produce an expert to give that testimony because that
is beyond the knowledge of common people.” Id.
Plaintiff told the Court that he understood his obligation
and was in the process retaining an expert, although he had
not yet done so. Id. at 13-14. The Court reminded
plaintiff that his expert disclosure was due in December
2017. Id. Plaintiff was further advised that
defendant would be making a motion for summary judgment on a
number of grounds, one of which was plaintiff's failure
to serve expert disclosure. Id.
January 16, 2018, defendant filed a Motion for Summary
Judgment pursuant to Fed.R.Civ.P. 56 and Local Rule 56.1 of
the Northern District of New York. Dkt. No. 74. Plaintiff
filed a response. Dkt. No. ...